DEFT 


WATER 
LAWS  OF 
OREGON 

1913 


WATER    LAWS 

OF   THE 

STATE  OF  OREGON 

COMPILED   FROM 

Lord's  Oregon  Laws  and  Session  Laws 
of  1911  and  1913 


1913 


PREPARED  IN  THE 

OFFICE  OF  THE  STATE  WATER  BOARD, 

SALEM,  OREGON,  AND  PUBLISHED 

BY  AUTHORITY  OF   THE 

LEGISLATURE  OP 

OREGON 


SALEM,  OREGON  : 

STATE  PRINTING  DEPARTMENT 

1913 


n 


DOCUMENT^ 
OEPfc 


STATE  WATER  BOARD. 

OFFICE:      SALEM,  OREGON 


JOHN  H.  LEWIS, 

President  and  State  Engineer, 

Salem,  Oregon. 

JAMES  T.  CHINNOCK, 

Superintendent  of  Water  Division  No.  1, 

Salem,  Oregon. 

GEO.  T.   COCHRAN, 

Superintendent  of  Water  Division  No.  2, 

La.  Grande,  Oregon. 

M.  F.  MERS, 

Secretary, 
Salem,  Oregon. 


REGULAR   MEETINGS: 

Second   Wednesday   in  April  and  the 

Third  Wednesday  in  November. 


TABLE  OF  CONTENTS 


WATER    LAWS    OF    OREGON 

PART  I. 
1909  WATER  CODE  WITH  AMENDMENTS 

PAGE 

(a)  Initiation  of  Rights 5 

(b)  Determination  of  Rights 11 

(c)  Distribution  of  Water 20 

(d)  General    27 

PART   II. 
GENERAL 

(a)  License  Fees  for  Power  Development..-.. 36 

(b)  Condemnation,  Rights  of  Way  and  Eminent  Domain 40 

(c)  Public   Use,   Liens,   Abandonment,   etc. 48 

(d)  Ditches,   Diversion  Works,  etc 53 

(e)  Unnavigable  Streams 65 

(f)  Appropriation  of  Water  for  Public  Buildings 68 

(g)  Appropriations  by  United  States 70 

(h)      Trails    and    Water    Courses 72 

(i)       Pollution  and  Obstruction  of  Streams 73 

(j)       Funds    80 

PART    III. 

IRRIGATION,  DRAINAGE,  DIKING  AND  IMPROVEMENT 
DISTRICTS 

(a)  Irrigation    Districts    87 

(b)  Drainage   Districts 122 

(c)  Diking  Districts  133 

(d)  Funding  the  Indebtedness  of  Drainage  and  Diking  Districts. ...139 

(e)  Artesian  Wells 141 

(f)  District    Improvement    Act 145 

PART    IV. 
FEDERAL  STATUTES  AND  >STATF,  DE^RfC  LAND  LAWS 

(a)  Recognition  of  'Existing  Water  'Kigfits. 150 

(b)  Dam  Act  of  1910 ..,-.!.>„ ..,".;....% 150 

(c)  Desert  Land  Act  of  1877,. ..' ;.; '....:.'.  ..:.... \.\.v!: 154 

(d)  Carey    Act 158 

(e)  State  Desert  Land  Laws 161 

(f)  Columbia  Southern  Project 168 

(g)  Navigable  Waters 171 


298174 


CONSTITUTIONAL  PROVISIONS 

The  constitution  of  Oregon  contains  no  provisions  directly 
relating  to  the  diversion  and  use  of  water  from  public  streams. 

No  administrative  machinery  for  distributing  public 
waters  to  those  entitled  thereto,  was  available  until  the  adop- 
tion of  what  is  commonly  called  the  "Water  Code,"  on  Febru- 
ary 24,  1909. 

Similar  laws  have  been  upheld  by  the  courts  in  Wyoming 
and  Nebraska,  (Farm  Inv.  Co.  v.  Carpenter,  9  Wyo.  110; 
61  Pac.  267;  Crawford  v.  Hathaway,  67  Neb.  325;  93  NW. 
795) ,  as  being  a  proper  exercise  of  the  police  power. 

(The   American    and    English    Ency-  and   welfare   of   society,   and  establish- 

clopedia    of    Law,    vol.    22,    p.    916,    de-  ing  such  rules  and  regulations  for  the 

fines     police     power     in     its     broadest  conduct    of    all    persons,    and    the    use 

acceptation   as    "the   general   power   of  and    management    of    all    property    as 

a  government  to  preserve  and  promote  may   be   conducive   to   the  public   inter- 

the    public    welfare    by    prohibiting   all  est.") 
things   hurtful    to    the    comfort,    safety 

ERRATA. 

Page  26,  §  5  is  not  L.  O.  L.,  but  §  5  of  Ch.  86,  L.  1913. 
Page  36,  read  §  6575  instead  of  §  6675. 
Page  41,  read  §  6838  instead  of  §  6638. 
Page  42,  read  §  6839  instead  of  §  6639. 
Page  72,  read  §  6447  instead  of  §  6477. 


WATER  LAWS  OF  OREGON 


PART  I. 

1909  WATER  CODE  WITH  AMENDMENTS 

(a)   INITIATION  OF  RIGHTS. 

§  6594.  Waters  May  Be  Appropriated  for  Beneficial  Use — Limitations. 
Subject  to  existing  rights,  all  waters  within  the  State  may 
be  appropriated  for  beneficial  use,  as  herein  provided,  and 
not  otherwise;  but  nothing  herein  contained  shall  be  so  con- 
strued as  to  take  away  or  impair  the  vested  right  of  any 
person,  firm,  corporation,  or  association  to  any  water;  pro- 
vided, that  the  provisions  of  this  act  do  not  apply  or  extend 
to  that  certain  stream  situated  in  Multnomah  County,  Oregon, 
known  as  Multnomah  Creek,  and  sometimes  called  Coon 
Creek,  which  stream  forms  Multnomah  Falls,  but  said  stream 
and  the  flow  of  water  therein  shall  not  be  diverted  or  inter- 
rupted for  any  purposes  whatsoever;  and  also  provided  fur- 
ther, that  the  provisions  of  this  act  do  not  apply  or  extend 
to  the  waters  of  the  Columbia  River  beginning  at  a  point  on 
the  Columbia  River  three  (3)  miles  down  stream  from  what 
is  known  as  the  Big  Eddy  at  The  Dalles  and  extending  to  a 
point  ten  (10)  miles  above  the  Celilo  Falls  on  said  river,  but 
said  stream  and  the  flow  of  water  therein  shall  not  be  diverted 
or  interrupted  for  any  purpose  or  purposes  whatsoever, 
excepting  by  authority  hereafter  to  be  granted  and  given 
by  the  legislature  of  the  State  of  Oregon.  (L.  1909,  c.  216, 
p.  319,  §  1;  L.  1913,  c.  157,  p.  273.) 

In   view   of   the   general   revisions   of  Mills   Co.   v.   Lord,   42    Or.    82,    69    Pac. 

the    law   relating   to   the   use    of    water  1033  ;    Harrington   v.    Demaris,    46    Or. 

effected     by     the     legislation     of     1909,  111,   77   Pac.   603  ;  Brown  v.   Gold  Coin 

it  has   not  been   considered  that  a  full  Min.    Co.,    48    Or.     277,     86    Pac.     361; 

annotation     of     the     earlier     decisions  Morton  v.  Oregon  S.  L.  Ry.  Co.,  48  Or. 

affecting     the     law     of     water     rights  444,    87    Pac.    151,    1046;     Williams    v. 

would    be    useful.    A    list    of    the    more  Altnow,  51  Or.  275,  95  Pac.  200  ;  Davis 

important    decisions    is    given    in    this  v.  Chamberlain,  51  Or.  304,  98  Pac.  154. 

note,  however.  There     is     no     such     thing    as    prior 

On  the  subject  of  riparian  rights,  see  riparian   ownership   so   far  as  distribu- 

Willamette    L.    &    T.    Co.,    7    Or.    355  ;  tion    of   water    for    irrigation    purposes 

Taylor  v.    Welch,   6   Or.    198;   Moore  v.  between  riparian  owners  is  concerned; 

Hay  den  v.    Long,   8   Or.    244  ;    C  off  man  the   rights   of   a   riparian   owner   to   the 

v.  Robbins,8  Or.  278;  Shively  v.  Hume,  waters    being   a    variable    one,    depend- 

10  Or.  76  ;  Shaw  v.  Oswego  Iron  Co.,  10  ing  on  use  by  other  proprietors:  Hough 

Or.   371;   Shook  v.   Colohon,  12  Or.  239,  v.  Porter,  51  Or.   318,   95  Pac.   732. 

6  Pac.   503  ;   Weiss  v.   Oregon  Iron  Co.,  Act    of    Congress    of    July    26,    1866, 

13     Or.     496,     11     Pac.     255;     Faull    v.  c.    262,    §9,    14    Stat.    (U.    S.    Comp.    St. 

Cooke,  19   Or.   455,   26   Pac.   662;  Jones  1901,   p.    1437),    relative   to   the   appro- 

v.  Conn,  39  Or.  30,  64  Pac.  855  ;  Salem  priation  of  water,  was  merely  a  recog- 


Sig.    2 


WATER  LAWS  OF  THE  STATE  OF  OREGON 


nition  of  rights  existing  at  the  time, 
rather  than  the  creation  of  a  new 
one :  Hough  v.  Porter,  supra. 

The  water  flowing  over  the  public 
domain  is  a  part  thereof,  and  the  gen- 
eral government  may  grant  or  other- 
wise dispose  of  its  riparian  interest 
separate  from  the  rest  of  the  estate. 
Hough  v.  Porter,  supra. 

The  legal  effect  of  the  language  in 
Act  of  Congress  March  3,  1877,  c.  107, 
19  Stat.  377  (U.  S.  Comp.  St.  1901,  p. 
1548),  namely,  "There  shall  be  and 
remain  and  be  held  free  for  the  appro- 
priation and  use  of  the  public  for  irri- 
gation," etc.,  constitutes  a  reservation 
and  dedication  to  the  public  of  all  inter- 
est, riparian  or  otherwise,  held  at  the 
time  by  the  national  government,  so 
far  as  such  interests  affect  the  uses  for 
irrigation  and  other  purposes  there 
enumerated,  from  which  it  follows  that 
this  act  abrogated  the  common  law 
rule  respecting  riparian  rights  as  to 
all  lands  settled  upon  or  entered  after 
March  3,  1877:  Hough  v.  Porter, 
supra. 

While  the  legal  effect  of  the  desert 
land  act  [act  Congress  March  3,  1877, 
c.  107,  19  Stat.  377  (U.  S.  Comp  St. 
1901,  p.  1548)1  was  to  abrogate  the 
modified  doctrine  of  riparian  rights  as 
to  all  lands  to  which  title  has  been 
acquired  after  the  enactment  thereof, 
it  does  not  go  so  far  as  to  affect  the 
rights  originally  giving  rise  to  the  doc- 
trine of  riparian  rights ;  that  is,  for 


domestic  and  stock  requirements : 
Hough  v.  Porter,  supra. 

Every  riparian  owner,  therefore,  re- 
gardless of  the  date  of  settlement,  is 
entitled  to  the  quantity  of  water  rea- 
sonably essential  to  his  domestic  use 
and  for  the  watering  of  his  stock,  in- 
cluding sufficient  supply  for  the  proper 
irrigation  of  such  garden  produce  as 
may  be  essential  to  the  proper  suste- 
nance of  his  family :  Hough  v.  Porter, 
suvra. 

Settlement  upon  land  bordering  upon 
oV  through  which  a  stream  may  flow, 
or  to  which  a  natural  source  of  water 
supply  may  be  adjacent,  or  upon  which 
it  may  be  situated,  is  in  itself  notice 
that  sufficient  water  for  domestic  uses 
and  requirements  incident  thereto  are 
and  will  continue  to  be  demanded  ;  but, 
to  constitute  an  appropriation  for  min- 
ing, irrigation,  or  power  purposes,  some 
steps  towards  a  diversion  thereof,  or 
other  good  and  sufficient  notice,  is  nec- 
essary :  Hough  v.  Porter,  supra. 

The  references  in  the  Code  to  ripar- 
ian rights  constitute  a  recognition  of 
whatever  riparian  rights  the  landed 
proprietor  may  have,  but  do  not  at- 
tempt to  define,  nor  to  in  any  manner 
establish  any  rule  respecting  such  in- 
terests. The  case  of  Sturr  v.  Beck,  133 
U.  S.  541  (10  Sup.  Ct.  o50,  33  L.  Ed. 
761),  together  with  Oregon  cases,  ex- 
amined and  held  not  in  conflict  with 
the  conclusions  here  reached :  Hough 
v.  Porter,  supra;  Coquille  Mill  &  Merc. 
Co.  v.  Johnson,  52  Or.  547,  98  Pac.  132. 


§  6624.  Application — Unlawful   Use   or  Diversion  a  Misdemeanor — 
Evidence. 

Any  person,  association  or  corporation  hereafter  intending 
to  acquire  the  right  to  the  beneficial  use  of  any  waters  shall, 
before  commencing  the  construction,  enlargement  or  extension 
of  any  ditch,  canal  or  other  distributing  or  controlling  works, 
or  performing  any  work  in  connection  with  said  construction, 
or  proposed  appropriation,  make  an  application  to  the  State 
Engineer  for  a  permit  to  make  such  appropriation.  Any  person 
who  shall  willfully  divert  or  use  water  to  the  detriment  of 
others  without  compliance  with  law,  shall  be  deemed  guilty  of 
a  misdemeanor.  The  possession  or  use  of  water,  except  when 
a  right  of  use  is  acquired  in  accordance  with  law,  shall  be 
prima  facie  evidence  of  the  guilt  of  the  person  using  it.  [L. 
1909,  c.  216,  p.  332,  §  45.] 


The  cases  of  Gardner  v.  Wright,  49 
Or.  609,  91  Pac.  286  ;  Watts  v.  Spen- 
cer, 51  Or.  262,  94  Pac.  39 ;  Williams 
v.  Altnow,  51  Or.  275,  95  Pac.  200;  97 
Pac.  539;  Davis  v.  Chamberlain,  51 
Or.  304,  98  Pac.  154;  and  Hough  v. 
Porter,  51  Or.  318,  95  Pac.  732,  98 
Pac.  1038;  though  decided  prior  to  the 
enactment  of  the  present  statute,  may 
be  referred  to  as  expounding  the  com- 
mon law  doctrine  as  to  use  and  appro- 
priation of  waters  previously  in  force 


in  this  State.  Hough  v.  Porter  espe- 
cially contains  full  and  ample  discus- 
sions of  the  general  doctrines  of  ap- 
propriation. 

For  cases  decided  since  the  enact- 
ment of  this  statute,  the  latter,  allud- 
ing to  the  present  water  code,  see 
Whited  v.  Cavin,  55  Or.  98,  105  Pac. 
396;  Games  v.  Dalton,  56  Or.  596,  110 
Pac.  170. 

A  number  of  persons  may  be  ten- 
ants in  common  in  a  water  ditch,  yet 


WATER  LAWS  OF  THE  STATE  OF  OREGON 


each  may  have  a  right  to  water  flow-  These     cases,     however,     are     incon- 

ing    through    it    differing    in    time    and  sistent    with    Beers    v.    Sharp,    44    Or. 

right:      McPhee  v.   Kelsey,   44   Or.    193,  386,     75    Pac.    717.       See    also    on    this 

74    Pac.    401,    75    Pac.    713  ;    Games   v.  point    dissenting    opinion    in    Shaw    v. 

Dalton,  56  Or.   596,   110  Pac.   170;  Ison  Proffitt,  57  Or.   192,  109  Pac.  589. 
v.  Sturgill,  57  Or.   109,   109   Pac.   579. 

§  6626.  Applications,  Nature  of. 

Each  application  for  permit  to  appropriate  water  shall  set 
forth  the  name  and  postoffice  address  of  the  applicant,  the 
source  of  water  supply,  the  nature  and  amount  of  the  pro- 
posed use,  the  location  and  description  of  the  proposed  ditch, 
canal,  or  other  work,  the  time  within  which  it  is  proposed  to 
begin  construction,  the  time  required  for  completion  of  the 
construction,  and  the  time  for  the  complete  application  of  the 
water  to  the  proposed  use.  If  for  agricultural  purposes,  it 
shall  give  the  legal  subdivisions  of  the  land  and  the  acreage  to 
be  irrigated,  as  near  as  may  be.  If  for  power  purposes,  it  shall 
give  the  nature  of  the  works  by  means  of  which  the  power  is  to 
be  developed,  the  head  and  amount  of  water  to  be  utilized,  and 
the  uses  to  which  the  power  is  to  be  applied.  If  for  the  construc- 
tion of  a  reservoir,  it  shall  give  the  height  of  dam,  the  capacity 
of  the  reservoir,  and  the  uses  to  be  made  of  the  impounded 
waters.  If  for  municipal  water  supply,  it  shall  give  the  pres- 
ent population  to  be  served,  and,  as  near  as  may  be,  the  future 
requirements  of  the  city.  If  for  mining  purposes,  it  shall  give 
the  nature  of  the  mines  to  be  served,  the  methods  of  sup- 
plying and  utilizing  the  water.  All  applications  shall  be 
accompanied  by  such  maps  and  drawings,  in  duplicate,  and 
such  other  data  as  may  hereafter  be  prescribed  by  the  Board 
of  Control,  and  such  accompanying  data  shall  be  considered 
as  a  part  of  the  application.  [L.  1909,  c.  216,  p.  332,  §  46.] 

§  6627.  Applications,  Approval  of. 

Upon  receipt  of  an  application,  it  shall  be  the  duty  of  the 
State  Engineer  to  make  an  indorsement  thereon  of  the  date  of 
its  receipt  and  to  keep  a  record  of  the  same.  If  upon  examina- 
tion the  application  is  found  to  be  defective,  it  shall  be  returned 
for  correction  or  completion,  and  the  date  of,  and  reasons  for 
the  return  thereof,  shall  be  indorsed  thereon  and  made  a  rec- 
ord in  his  office.  No  application  shall  lose  its  priority  of  filing 
on  account  of  such  defects,  provided  acceptable  maps  and 
drawings  are  filed  in  the  office  of  the  State  Engineer  within 
thirty  days  from  the  date  of  said  return  to  the  applicant.  All 
applications  which  shall  comply  with  the  provisions  of  this  act 
shall  be  recorded  in  a  suitable  book  kept  for  that  purpose,  and 
it  shall  be  the  duty  of  the  State  Engineer  to  approve  all  appli- 
cations made  in  proper  form  which  contemplate  the  appli- 
cation of  water  to  a  beneficial  use,  but  when  the  proposed  use 
conflicts  with  determined  rights,  or  is  a  menace  to  the  safety 


WATER  LAWS  OF  THE  STATE  OF  OREGON 


and  welfare  of  the  public,  the  application  shall  be  referred  to 
the  Board  of  Control  for  consideration.  It  shall  be  the  duty  of 
the  board  to  enter  an  order  directing  the  refusal  of  such  appli- 
cation, if,  after  full  hearing,  the  public  interest  demands.  An 
application  may  be  approved  for  a  less  amount  of  water  than 
that  applied  for,  if  there  exists  substantial  reasons  therefor, 
and  in  any  event  shall  not  be  approved  for  more  water  than 
can  be  applied  to  a  beneficial  use.  Applications  for  municipal 
water  supplies  may  be  approved  'to  the  exclusion  of  all  subse- 
quent appropriations,  if  the  exigencies  of  the  case  demand  upon 
consideration  and  order  by  the  Board  of  Control.  [L.  1909, 
c.  216,  p.  333,  §  47.] 


The  right  to  the  beneficial  use  of 
water  to  be  acquired  under  permit 
applied  for  under  the  provisions  of 
this  section,  is  not  an  opportunity  to 
acquire  a  monopoly  of  the  waters  of  a 
stream  for  promiscuous  sale,  but  must 
contemplate  a  use  on  specific  land 
which,  when  completed  under  Section 
6633,  shall  become  appurtenant  to  the 
land  upon  which  it  is  applied.  Cook- 
ingham  et  al.  v.  Lewis  et  al.,  114  Pac. 
88. 

When  an  application  for  a  permit 
to  appropriate  water  under  the  pro- 
visions of  the  above  section  is  re- 
ferred to  the  Board  of  Control  for  con- 
sideration, the  board  may  refuse  the 
application  if  on  facts  within  their 
knowledge  it  appears  that  the  permit 
would  be  a  menace  to  the  public  wel- 
ware ;  the  word  "and"  in  the  phrase 
"a  menace  to  the  safety  and  welfare 
of  the  public,"  is  construed  to  have 
the  meaning  of  "or."  A  menace  to 
either  safety  or  welfare  of  the  public 
would  be  sufficient  grounds  for  a  re- 
fusal of  the  application.  Cookingham 
et  al.  v.  Lewis  et  al.,  supra. 

In  making  a  reference  of  nn  appli- 
cation for  a  permit  to  appropriate 
water  to  the  Board  of  Control  under 
the  provisions  of  the  above  section, 
the  State  Engineer  is  not  limited  to 
the  recitals  contained  in  the  applica- 
tion, but  may  act  upon  any  informa- 
tion he  may  have.  Cookingham  et  al. 
v.  Lewis  et  al.,  supra. 

Plaintiffs  filed  with  the  State  En- 
gineer application  for  a  permit  to  ap- 
propriate water  of  a  certain  stream, 
and  later  filed  a  supplementary  appli- 
cation for  additional  water.  Subse- 
quent to  both  filings,  F.,  one  of  the 
defendants,  applied  for  a  permit  to 


construct  a  storage  reservoir  to  store 
the  waters  of  the  same  stream.  The 
lands  described  in  these  various  appli- 
cations were  withdrawn  from  entry 
under  the  public  land  laws  of  the 
United  States  for  irrigation  by  the 
State  under  the  Carey  Act.  There- 
after,  the  State  Engineer  referred  all 
three  said  applications  to  the  Board 
of  Control  on  the  ground  that  the 
proposed  use  in  each  case  was  a  men- 
ace to  the  safety  and  welfare  of  the 
public,  under  the  provisions  of  the 
above  section.  It  was  held  that  the 
Hoard  of  Control  was  authorized  to 
direct  the  State  Engineer  to  refuse 
the  applications  of  the  party  or  par- 
ties not  securing  a  final  contract  with 
the  Desert  Land  Board  for  the  reclam- 
ation of  said  lands,  and  to  approve 
the  application  of  the  party  securing 
such  contract,  since  none  of  the  appli- 
cations contemplated  a  beneficial  use 
to  which  the  water  could  be  applied, 
none  of  the  applicants  having  a  right 
to  reclaim  the  desert  public  land  de- 
scribed in  the  applications  till  some 
agreement  was  consummated  with  the 
State  for  that  purpose.  Cookingham 
<  t  nl.  v.  Lewis  et  al.,  supra. 

The  State  Engineer  is  not  required 
to  approve  an  application  unless  it 
complies  with  the  requirements  of  the 
above  section.  He  is  not  required  to 
approve  an  application  intended  to 
appropriate  water,  or  for  a  reservoir 
for  a  public,  beneficial  use,  when  the 
beneficial  use,  as  set  forth  in  the  re- 
citals  o!"  the  application,  is  not,  in  fact, 
available  to  the  applicant.  He  is  only 
required  to  approve  an  application 
when  it  contemplates  the  appropriation 
of  water  to  a  beneficial  use.  Cooking- 
ham  v.  Lewis  (rehearing),  114  Pac 


§  6628.  Application,  How  Indorsed. 

The  approval  or  rejection  of  an  application  shall  be 
indorsed  thereon  and  a  record  made  of  such  indorsement  in 
the  State  Engineer's  office.  The  application  so  indorsed  shall 
be  returned  immediately  to  the  applicant  by  mail.  If  approved, 
the  applicant  shall  be  authorized,  on  receipt  thereof,  to  proceed 
with  the  construction  of  the  necessary  works,  and  to  take 


WATER  LAWS  OF  THE  STATE  OF  OREGON  9 

all  steps  required  to  apply  the  water  to  a  beneficial  use,  and 
to  perfect  the  proposed  appropriation.  If  the  application  is 
refused,  the  applicant  shall  take  no  steps  toward  the  construc- 
tion of  the  proposed  work  or  the  diversion  and  use  of  water  so 
long  as  such  refusal  shall  continue  in  force.  [L.  1909,  c.  216, 
p.  333,  §  48.] 

§  6629.  Assignment  of  Permit. 

Any  permit  or  license  to  appropriate  water  may  be 
assigned,  subject  to  the  conditions  of  the  permit,  but  no  such 
assignment  shall  be  binding,  except  upon  the  parties  thereto, 
unless  filed  for  record  in  the  office  of  the  State  Engineer. 
[L.  1909,  c.  216,  p.  333,  §  49.] 

§  6630.  Limitation  on  Time  of  Completing  Work. 

Actual  construction  work,  except  under  applications  by 
municipal  corporations  for  municipal  uses  or  purposes,  shall 
begin  within  one  year  from  the  date  of  approval  of  the  applica- 
tion, and  the  construction  of  any  proposed  irrigation  or  other 
work  shall  thereafter  be  prosecuted  with  reasonable  diligence 
and  be  completed  within  a  reasonable  time,  as  fixed  in  the 
permit,  not  to  exceed  five  years  from  the  date  of  such  approval. 
The  Board  of  Control  shall,  for  a  good  cause  shown,  order  and 
allow  an  extension  of  time,  including  an  extension  beyond  the 
five-year  limitation  imposed  by  the  approval  of  the  State 
Engineer,  within  which  irrigation  or  other  works  shall  be 
completed  or  the  right  perfected,  under  any  permit  which  may 
be  submitted  for  its  consideration  by  the  State  Engineer,  and 
in  determining  said  extension,  shall  give  due  weight  to  the 
considerations  described  and  set  out  in  subdivision  6,  of  Sec- 
tion 6595  of  Lord's  Oregon  Laws.  [L.  1909,  c.  216,  p.  333, 
§50;  L.  1913,  c.  160,  p.  277.] 

What  constitutes  reasonable  diligence  must  be  determined  from  the  facts  of 
each  case.  Diligence  requires  such  constancy  and  steadiness  of  purpose  or  of 
labor  as  is  usual  with  men  engaged  in  like  enterprises.  (Pringle  Falls  Elec.  Power 
&  Water  Co.  v.  Patterson  et  al.,  132  Pac.  526.) 

§6631.  Appeals. 

An  applicant  may  appeal  to  the  Board  of  Control  for  relief, 
which  board  may  modify  the  decisions  of  the  State  Engineer 
if  it  shall  appear  that  he  has  abused  the  authority  reposed  in 
him  by  law.  Such  appeal  shall  be  taken  within  thirty  days 
from  the  date  of  such  decision  by  the  State  Engineer,  and  shall 
be  perfected  when  the  applicant  shall  have  filed  in  the  office  of 
the  board  a  copy  of  the  order  appealed  from,  together  with  a 
petition  setting  forth  the  appellant's  reason  for  appeal,  and 
such  appeal  shall  be  heard  and  determined  upon  such  com- 
petent proof  as  shall  be  adduced  by  the  applicant,  and  such  like 
proofs  as  shall  be  adduced  by  the  State  Engineer.  The  State 


10  WATER  LAWS  OP  THE  STATE  OF  OREGON 


Engineer  shall  not  sit  as  a  member  of  the  board  on  such  appeal. 
[L.  1909,  c.  216,  p.  333,  §  51.] 

§  6632.  Procedure  Under  Reservoir  Permit. 

All  applications  for  reservoir  permits  shall  be  subject  to 
the  provisions  of  Sections  6624  to  6631,  both  inclusive,  except 
that  an  enumeration  of  any  lands  proposed  to  be  irrigated 
under  this  act  shall  not  be  required  in  the  primary  permit.  But 
the  party  or  parties  proposing  to  apply  to  a  beneficial  use  the 
water  stored  in  any  such  reservoir  shall  file  an  application  for 
permit,  to  be  known  herein  as  the  secondary  permit,  in  com- 
pliance with  the  provisions  of  Sections  6624  to  6631,  both 
inclusive.  Said  application  shall  refer  to  such  reservoir  for  a 
supply  of  water  and  shall  show  by  documentary  evidence  that 
an  agreement  has  been  entered  into  with  the  owners  of  the 
reservoir  for  a  permanent  and  sufficient  interest  in  said  reser- 
voir to  impound  enough  water  for  the  purposes  set  forth  in 
said  application.  When  beneficial  use  has  been  completed  and 
perfected  under  the  secondary  permit,  the  division  superin- 
tendent shall  take  the  proof  of  the  water  user  under  such  per- 
mit and  the  final  certificate  of  appropriation  shall  refer  to  both 
the  ditch  described  in  the  secondary  permit  and  the  reservoir 
described  in  the  primary  permit.  [L.  1909,  c.  216,  p.  337,  §  58.] 

The  section  above  does  not  contem-  a  user  shall  acquire  a  permanent  own- 
plate  that  the  primary  permit  shall  ership  by  an  agreement  with  the  owner 
include  the  right  to  divert  and  use  for  a  specific  quantity  of  the  water  for 
such  stored  water,  but  contemplates  the  needs  of  and  use  on  his  land,  and 
only  the  storage  of  the  water  in  some-  when  reclamation  of  the  land,  is  corn- 
locality  where  it  will  be  utilized  for  pleted,  the  water  becomes  appurtenant 
irrigation ;  while  the  secondary  permit  to  his  land.  Cookingham  et  al.  v.  Lewis 
provided  for  thereby  contemplates  that  et  al.,  114  Pac.  88. 

§  6633.  Water  Right  Certificate. 

Upon  it  being  made  to  appear  to  the  satisfaction  of  the 
Board  of  Control  that  any  appropriation  has  been  perfected 
in  accordance  with  the  provisions  of  this  act,  it  shall  be  the 
duty  of  the  Board  of  Control  to  issue  to  the  applicant  a  cer- 
tificate of  the  same  character  as  that  described  in  Section  6649. 
Said  certificate  shall  be  recorded  and  transmitted  to  the  appli- 
cant as  provided  in  said  section.  Certificates  issued  for  rights 
to  the  use  of  water  for  power  development  acquired  under  the 
provisions  of  this  act  shall  limit  the  right  or  franchise  to  a 
period  of  forty  years  from  date  of  application,  subject  to  a 
preference  right  of  renewal  under  the  laws  existing  at  the 
date  of  expiration  of  such  franchise  or  right.  [L.  1909,  c.  216, 
p.  335,  §  53.] 

§  6634.  Date  of  Right. 

The  right  acquired  by  such  appropriation  shall  date  from 


WATER  LAWS  OF  THE  STATE  OF  OREGON  11 

the  filing  of  the  application  in  the  office  of  the  State  Engineer. 
[L.  1909,  c.  216,  p.  335,  §  54.] 

(b)  DETERMINATION  OF  RIGHTS. 
§  6635.  Determination. 

Upon  a  petition  to  the  Board  of  Control,  signed  by  one  or 
more  water  users  upon  any  stream,  requesting  the  determina- 
tion of  the  relative  rights  of  the  various  claimants  to  the 
waters  of  that  stream,  it  shall  be  the  duty  of  the  Board  of 
Control,  if,  upon  investigation,  they  find  the  facts  and  condi- 
tions are  such  as  to  justify,  to  make  a  determination  of  the 
said  rights,  fixing  a  time  for  beginning  the  taking  of  testimony 
and  the  making  of  such  examination  as  will  enable  them  to 
determine  the  rights  of  the  various  claimants.  In  case  suit 
is  brought  in  the  circuit  court  for  the  determination  of  rights 
to  the  use  of  water,  the  case  may,  in  the  discretion  of  the 
court,  be  transferred  to  the  Board  of  Control  for  determina- 
tion as  in  this  act  provided.  [L.  1909,  c.  216,  p.  321,  §  11.] 

See  Silvies  River  Determination,   199  is  a  party  to  such  determination. 

Fed.    495,    in  which  the  District  Court  A   federal   court   in   which   a   suit   is 

of  the  United  States  for  Oregon  holds  brought    to    enjoin    defendants    therein 

that  a  proceeding  initiated   under  this  from  using  waters  of  a  stream  should 

section,  and  those  following,   is  admin-  require    the    parties    to    proceed    under 

istrative   rather   than   judicial ;    that   it  this  act  or  to   bring  in   all   other  per- 

does   not   constitute   a   suit   or   contro-  sons    in    interest    as    parties.      Pacific 

versy    that    could    be    removed    to    the  Live  Stock  Co.  v.   Silvies  River  Irriga- 

federal  court  on   the   ground  of   diver-  tion  Co.  et  al,  200  Fed.  487. 
sity  of  citizenship;   and  that  the  State 

§  6636.  Notice  of  Proceedings. 

The  board  shall  prepare  a  notice,  setting  forth  the  date 
when  the  engineer  will  begin  an  investigation  of  the  flow  of  the 
stream  and  of  the  ditches  diverting  water  therefrom,  and  a 
place  and  a  time  certain  when  the  superintendent  of  the  water 
division  in  which  that  stream  is  situated  shall  begin  the  taking 
of  testimony  as  to  the  rights  of  the  parties  claiming  water 
therefrom.  Said  notice  shall  be  published  in  two  issues  of 
one  or  more  newspapers  having  general  circulation  in  the 
counties  in  which  such  stream  is  situated,  the  last  publica- 
tion of  said  notice  to  be  at  least  thirty  days  prior  to  the 
beginning  of  taking  testimony  by  said  division  superintendent, 
or  for  the  measurement  of  the  stream  by  the  State  Engineer, 
or  his  assistant.  The  superintendent  taking  such  testimony 
shall  have  the  power  to  adjourn  the  taking  of  testimony  from 
time  to  time  and  from  place  to  place,  to  suit  the  convenience, 
of  those  interested.  [L.  1909,  c.  216,  p.  322,  §  12.] 

§  6637.  Notice  to  Claimants. 

It  shall  be  the  duty  of  said  division  superintendent  to  send 
by  registered  mail  to  each  person,  firm,  or  corporation,  here- 
inafter to  be  designated  as  claimant,  claiming  the  right  to  the 


12  WATER  LAWS  OP  THE  STATE  OF  OREGON 

use  of  any  of  the  water  of  said  stream,  and  to  each  person, 
firm,  or  corporation  owning  or  being  in  possession  of  lands 
bordering  on  and  having  access  to  said  stream  or  its  tributa- 
ries, in  so  far  as  such  claimants  and  owners  and  persons  in 
possession  can  reasonably  be  ascertained,  a  similar  notice 
setting  forth  the  date  when  the  State  Engineer  or  his  assistant 
will  begin  the  examination  of  the  stream  and  the  ditches 
diverting  the  waters  therefrom,  and  also  the  date  when  the 
superintendent  will  take  testimony  as  to  the  rights  to  the 
water  of  said  stream.  Said  notice  must  be  mailed  at  least 
thirty  days  prior  to  the  date  set  therein  for  making  the  exam- 
ination of  the  stream  or  the  taking  of  testimnoy.  [L.  1909, 
c.  216,  p.  322,  §  13.] 

§  6638.  Statement  of  Claimant. 

The  division  superintendent  shall,  in  addition,  inclose  with 
said  notice  a  blank  form  on  which  said  claimant  or  owner 
shall  present  in  writing  all  the  particulars  necessary  for  the 
determination  of  his  right  to  the  waters  of  the  stream  to 
which  he  lays  claim,  the  said  statement  to  include  the  follow- 
ing: The  name  and  postoffice  address  of  the  claimant;  the 
nature  of  the  right  or  use  on  which  the  claim  is  based;  the 
time  of  initiation  of  such  right  or  the  commencement  of  such 
use,  and  if  distributing  works  are  required;  the  date  of 
beginning  of  construction ;  the  date  when  completed ;  the  date 
of  beginning  and  completion  of  enlargements ;  the  dimensions 
of  the  ditch  as  originally  constructed  and  as  enlarged;  the 
date  when  water  was  first  used  for  irrigation  or  other  bene- 
ficial purposes,  and  if  used  for  irrigation,  the  amount  of  land 
reclaimed  the  first  year,  the  amount  in  subsequent  years,  with 
the  dates  of  reclamation,  and  the  amount  and  general  location 
of  the  land  such  ditch  is  intended  to  irrigate;  the  character 
of  the  soil  and  the  kind  of  crops  cultivated,  and  such  other 
facts  as  will  show  a  compliance  with  the  law  in  acquiring  the 
right.  [L.  1909,  c.  216,  p.  322,  §  14.] 

§  6639.  Statement  to  Be  Tinder  Oath. 

Each  claimant  or  owner  shall  be  required  to  certify  to  his 
statements  under  oath,  and  the  superintendent  of  the  water 
division  in  which  the  testimony  is  taken  is  hereby  authorized 
to  administer  such  oaths,  which  shall  be  done  without  charge, 
as  also  shall  be  the  furnishing  of  blank  forms  for  said  state- 
ment. [L.  1909,  c.  216,  p.  323,  §  15.] 

§  6640.  Testimony  to  Be  Taken  by  Division  Superintendent. 

Upon  the  date  named  in  the  notice  provided  for  herein  for 
the  taking  of  testimony,  the  division  superintendent  shall  begin 


WATER  LAWS  OF  THE  STATE  OF  OREGON  13 

the  taking  of  such  testimony  and  shall  continue  until  com- 
pleted. In  case  the  division  superintendent  of  any  water 
division  is  directly  or  indirectly  interested  in  the  water  of  any 
stream  of  his  division,  or  is  prevented  by  illness  or  otherwise 
from  the  taking  of  such  proofs,  the  taking  of  testimony  so 
far  as  relates  to  said  stream  shall  be  under  the  direction  of 
any  other  member  of  the  Board  of  Control.  [L.  1909,  c.  216, 
p.  323,  §  16.] 

§  6641.  Fees. 

At  the  time  of  the  submission  of  proof  of  appropriation, 
or  at  the  time  of  the  taking  of  testimony  for  the  determina- 
tion of  rights  to  water,  the  division  superintendent  shall  col- 
lect from  each  of  the  claimants  or  owners  a  fee  of  $1.00  for 
the  purpose  of  recording  the  water  right  certificate,  when 
issued,  in  the  office  of  the  county  clerk,  together  with  the  addi- 
tional fee  of  fifteen  cents  for  each  acre  of  irrigated  lands  up 
to  and  including  one  hundred  acres,  and  five  cents  per  acre 
for  each  acre  in  excess  of  one  hundred  acres  up  to  and  includ- 
ing one  thousand  acres,  and  one  cent  for  each  acre  in  excess 
of  one  thousand;  also  twenty-five  cents  for  each  theoretical 
horsepower  up  to  and  including  one  hundred  horsepower,  and 
fifteen  cents  for  each  horsepower  in  excess  of  one  hundred 
up  to  and  including  one  thousand  horsepower,  and  five  cents 
for  each  horsepower  in  excess  of  one  thousand  horsepower 
up  to  and  including  two  thousand  horsepower,  and  two  cents 
for  each  horsepower  in  excess  of  two  thousand  horsepower,  as 
set  forth  in  such  proof,  the  minimum  fee,  however,  for  any 
claimant  or  owner  in  such  cases  to  be  $2.50,  also  a  fee  of 
$5.00  for  any  other  character  of  claim  to  water.  All  fees 
collected  by  the  division  superintendent  shall  be  accounted 
for  at  the  following  regular  meeting  of  the  Board  of  Control 
and  paid  by  such  board  into  the  general  fund  of  the  State 
treasury,  except,  however,  those  fees  due,  or  to  be  paid  to 
the  county  clerk.  But  in  cases  of  appropriations  of  water 
made  under  a  permit  issued  under  the  provisions  of  this  act, 
only  $1.00  recording  fee  above  provided  shall  be  so  collected 
by  the  division  superintendent.  [L.  1909,  c.  216,  p.  323,  §  17.] 

§  6642.  Notice  Upon  Completion  of  Testimony. 

Upon  the  completion  of  the  taking  of  testimony  by  the 
division  superintendent,  it  shall  be  his  duty  at  once  to  give 
notice  by  registered  mail  to  the  various  claimants  that  at  a 
time  and  place  named  in  the  notice  not  less  than  ten  days 
thereafter,  all  of  said  evidence  shall  be  open  to  inspection 
of  the  various  claimants  or  owners,  and  said  superintendent 
shall  keep  said  evidence  open  to  inspection  at  said  places  not 


14  WATER  LAWS  OF  THE  STATE  OF  OREGON 

less  than  ten  days,  and  such  other  time  as  fixed  in  the  notice. 
Said  superintendent  shall  also  state  in  said  notice  the  county 
in  which  the  determination  of  the  Board  of  Control  will  be 
heard  by  the  circuit  court;  provided,  that  said  cause  shall  be 
heard  in  the  county  in  which  said  stream  or  some  part  thereof 
is  situate.  [L.  1909,  c.  216,  p.  324,  §  18.] 

§6643.  Contests. 

Should  any  person,  corporation  or  persons  owning  any 
irrigation  works,  or  claiming  any  interest  in  the  stream  or 
streams  involved  in  the  determination,  desire  to  contest  any 
of  the  rights  of  the  persons,  corporations  or  associations  who 
have  submitted  their  evidence  to  the  superintendent  as  afore- 
said, such  persons,  corporations  or  associations,  shall  within 
five  days  after  the  expiration  of  the  period  as  fixed  in  the 
notice  for  public  inspection,  notify  the  superintendent  in  writ- 
ing, stating  with  reasonable  certainty  the  grounds  of  their  pro- 
posed contest,  which  statement  shall  be  verified  by  the  affidavit 
of  the  contestant,  his  agent  or  attorney,  and  the  said  division 
superintendent  shall  notify  the  said  contestant  and  the  person, 
corporation  or  association,  whose  rights  are  contested,  to 
appear  before  him  at  such  convenient  place  as  the  superin- 
tendent shall  designate  in  said  notice.  [L.  1909,  c.  216,  p.  324, 
§  19.] 

§6644.  Hearing. 

Said  superintendent  shall  also  fix  the  time  and  place  for  the 
hearing  of  said  contest,  which  date  shall  not  be  less  than  thirty 
nor  more  than  sixty  days  from  the  date  the  notice  is  served  on 
the  party,  association  or  corporation,  which  notice  and  returns 
thereof  shall  be  made  in  the  same  manner  as  summons  are 
served  in  civil  actions  in  the  circuit  courts  of  this  State. 
Superintendents  of  water  divisions  shall  have  power  to  adjourn 
hearings  from  time  to  time  upon  reasonable  notice  to  all  the 
parties  interested,  and  to  issue  subpoenas  and  compel  the 
attendance  of  witnesses  to  testify  upon  such  hearings,  which 
shall  be  served  in  the  same  manner  as  subpoenas  issued  out  of 
the  circuit  courts  of  the  State,  and  shall  have  the  power  to  com- 
pel such  witnesses  so  subpoenaed  to  testify  and  give  evidence  in 
said  matter,  and  shall  have  the  power  to  order  the  taking  of 
depositions  and  to  issue  commissions  therefor  in  such  manner 
as  the  Board  of  Control  by  rule  may  provide,  and  said  witnesses 
shall  receive  fees  as  in  civil  cases,  the  costs  to  be  taxed  in  the 
same  manner  as  are  costs  in  suits  in  equity.  The  evidence  in 
such  proceedings  shall  be  confined  to  the  subjects  enumerated 
in  the  notice  of  contest.  [L.  1909,  c.  216,  p.  324,  §  20 ;  L.  1913, 
c.  86,  p.  139.  §  3.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  15 

§  6646.  Evidence  Transmitted. 

Upon  the  expiration  of  the  period  for  which  the  evi'dence  is 
kept  open  for  inspection,  the  evidence  in  the  original  hearing 
before  the  superintendent,  and  the  evidence  taken  in  all  con- 
tests, shall  be  transmitted  by  the  superintendent  to  the  office 
of  the  Board  of  Control  in  person,  or  by  registered  mail.  Such 
evidence  shall  thereupon  be  filed  with  the  board.  [L.  1909, 
c.  216,  p.  325,  §  22.] 

§  6647.  Measurements  of  Streams  and  Ditches. 

It  shall  be  the  duty  of  the  State  Engineer,  or  some  qualified 
assistant,  to  proceed  at  the  time  specified  in  the  notice  to  the 
parties  on  said  stream  to  make  an  examination  of  said  stream 
and  the  works  diverting  water  therefrom,  said  examination 
to  include  the  measurement  of  the  discharge  of  said  stream 
and  of  the  carrying  capacity  of  the  various  ditches  and  canals, 
and  examination  of  the  irrigated  lands;  and  an  approximate 
measurement  of  the  lands  irrigated  or  susceptible  of  irri- 
gation from  the  various  ditches  and  canals;  and  to  take  such 
other  steps  and  gather  such  other  data  and  information  as  may 
be  essential  to  the  proper  understanding  of  the  relative  rights 
of  the  parties  interested ;  which  said  observation  and  measure- 
ment shall  be  reduced  to  writing  and  made  a  matter  of  record 
in  his  office,  and  it  shall  be  the  duty  of  the  State  Engineer  to 
make  or  cause  to  be  made  a  map  or  plat  on  a  scale  of  not  less 
than  one  inch  to  the  mile,  showing  with  substantial  accuracy 
the  course  of  said  stream,  the  location  of  each  ditch  or  canal 
diverting  water  therefrom,  and  the  legal  subdivisions  of  lands 
which  have  been  irrigated  or  which  are  susceptible  of  irriga- 
tion from  the  ditches  and  canals  already  constructed.  [L.  1909, 
c.  216,  p.  325,  §  23.] 

§  6648.  Order  Determining  Water  Rights. 

As  soon  as  practicable  after  the  compilation  of  said  date 
(data)  and  the  filing  of  said  evidence  in  the  office  of  the 
Board  of  Control,  the  board  shall  make  and  cause  to  be  entered 
of  record  in  its  office,  findings  of  fact  and  an  order  of  deter- 
mination, determining  and  establishing  the  several  rights  to 
the  waters  of  said  stream.  The  original  evidence  filed  with  the 
board,  and  certified  copies  of  the  observations  and  measure- 
ments and  maps  of  record  in  the  State  Engineer's  office,  in 
connection  with  such  determination,  as  provided  for  by  Sec- 
tion 6647,  Lord's  Oregon  Laws,  together  with  a  copy  of  the 
order  of  determination  and  findings  of  the  Board  of  Control, 
as  the  same  appears  of  record  in  its  office,  shall  be  certified 
to  by  the  secretary  of  the  board,  and  filed  with  the  clerk  of  the 
circuit  court  wherein  the  determination  is  to  be  heard.  A 


16  WATER  LAWS  OF  THE  STATE  OF  OREGON 

certified  copy  of  such  order  of  determination  and  findings 
shall  be  filed  in  every  other  county  in  which  such  stream,  or 
any  portion  of  a  tributary,  is  situated,  with  the  county  clerk. 
Upon  the  filing  of  such  evidence  and  order  with  the  court,  the 
board  shall  procure  an  order  from  said  court,  or  any  judge 
thereof,  fixing  the  time  at  which  the  determination  shall  be 
heard  in  said  court,  which  hearing  shall  be  at  least  forty  days 
subsequent  to  the  date  of  such  order.  The  clerk  of  said  court 
shall,  upon  the  making  of  such  order,  forthwith  forward  a  cer- 
tified copy  thereof  to  the  secretary  of  said  board  by  registered 
mail,  and  said  secretary  shall  immediately  upon  receipt  thereof 
by  registered  mail,  notify  each  claimant  or  owner  who  has 
appeared  in  the  proceeding,  of  the  time  and  place  for  such 
hearing.  Service  of  such  notice  shall  be  deemed  complete  upon 
depositing  such  notice  in  the  postoffice  as  registered  mail, 
addressed  to  such  claimant  or  owner  at  his  postoffice  address, 
as  set  forth  in  his  proof,  theretofore  filed  in  the  proceeding. 
Proof  of  such  service  shall  be  made  and  filed  with  the  circuit 
court  by  such  secretary  as  soon  as  possible  after  the  mailing 
of  such  notices.  The  determination  of  the  board  shall  be  in 
full  force  and  effect  from  the  date  of  its  entry  in  the  records 
of  the  board,  unless  and  until  its  operation  shall  be  stayed  by 
a  stay  bond  as  provided  by  this  act.  [L.  1909,  c.  216,  p.  326, 
§24;L.  1913,  c.  97,  p.  161.] 

§  6649.  Water  Right  Certificate. 

Upon  the  final  determination  of  the  rights  to  the  waters  of 
any  stream,  it  shall  be  the  duty  of  the  secretary  of  the  Board 
of  Control  to  issue  to  each  person,  association  or  corporation 
represented  in  such  determination  a  certificate  to  be  signed  by 
the  president  of  the  Board  of  Control,  and  attested  under  seal 
by  the  secretary  of  said  board,  setting  forth  the  name  and 
postoffice  address  of  the  owner  of  the  right;  the  priority  of 
the  date,  extent  and  purpose  of  such  right ;  and  if  such  water 
be  for  irrigation  purposes,  a  description  of  the  legal  sub- 
divisions of  land  to  which  said  water  is  appurtenant.  Such 
certificate  shall  be  transmitted  by  the  president,  or  other  mem- 
ber of  the  Board  of  Control,  in  person  or  by  registered  mail, 
to  the  county  clerk  of  the  county  in  which  such  right  is  located, 
and  it  shall  be  the  duty  of  the  county  clerk  upon  receipt  of  the 
recording  fee  of  $1.00  collected  as  hereinbefore  provided,  to 
record  the  same  in  a  book  especially  prepared  and  kept  for  that 
purpose,  and  thereupon  immediately  transmit  the  certificates 
to  the  respective  owners.  [L.  1909,  c.  216,  p.  326,  §  25.] 

§  6650.  Court  Procedure. 

From  and  after  the  filing  of  the  evidence  and  order  of 


WATER  LAWS  OF  THE  STATE  OF  OREGON  17 


determination  in  the  circuit  court,  the  proceedings  shall  be  as 
nearly  as  may  be  like  those  in  a  suit  in  equity,  except  that 
any  proceedings,  including  the  entry  of  a  decree,  may  be  had  in 
vacation  with  the  same  force  and  effect  as  in  term  time.  At 
any  time  prior  to  the  hearing  provided  for  by  Section  6648, 
Lord's  Oregon  Laws,  as  in  this  act  amended,  any  party,  or 
parties  jointly  interested,  may  file  exceptions  in  writing  to 
such  findings  and  order  of  determination,  or  any  part  or  parts 
thereof,  which  exceptions  shall  state  with  a  reasonable  degree 
of  certainty  the  grounds  of  the  exceptions  and  shall  specify  the 
particular  paragraphs  or  parts  of  such  findings  and  order 
excepted  to.  A  copy  of  such  exceptions,  verified  by  such 
exceptor,  or  certified  to  by  his  attorney,  shall  be  served  upon 
each  claimant,  who  was  an  adverse  party  to  any  contest  or 
contests  wherein  such  exceptor  was  a  party  in  the  proceedings, 
prior  to  such  hearing.  Such  service  shall  be  made  by  the 
exceptor  or  his  attorney  upon  each  of  such  adverse  parties  in 
person,  or  upon  the  attorney  of  such  party,  if  he  has  appeared 
by  attorney,  or  upon  his  agent;  and  if  such  adverse  party  is  a 
nonresident  of  the  county  or  State,  such  service  may  be  made 
by  mailing  such  copy  to  such  adverse  party  by  registered  mail, 
addressed  to  his  place  of  residence,  as  set  forth  in  his  proof 
filed  in  the  proceeding.  If  no  exceptions  are  filed  the  court 
shall  on  the  day  set  for  the  hearing  enter  a  decree  affirming 
the  determination  of  the  board.  If  exceptions  are  filed  upon 
the  day  set  for  the  hearing  the  court  shall  fix  a  time  not  less 
than  thirty  days  thereafter,  unless  for  good  cause  shown  such 
time  be  extended  by  the  court,  at  which  time  a  hearing  will  be 
had  upon  such  exceptions.  All  parties  may  be  heard  upon  the 
consideration  of  the  exceptions,  and  the  Board  of  Control  may 
appear  on  behalf  of  the  State  of  Oregon,  either  by  a  member 
of  such  board  or  by  the  Attorney  General.  The  court  may,  if 
necessary,  remand  the  case  for  such  further  testimony  as  it 
may  direct,  to  be  taken  by  the  division  superintendent,  or  by 
a  referee  appointed  by  the  court  for  that  purpose,  as  in  a  suit 
in  equity  in  such  circuit  court,  and  upon  the  completion  of  such 
testimony  and  its  report  to  the  board,  said  board  may  be 
required  to  make  a  further  determination.  After  final  hear- 
ing the  court  shall  enter  a  decree  affirming  or  modifying  the 
order  of  the  Board  of  Control,  and  may  assess  such  costs  as 
it  may  deem  just.  Appeals  may  be  taken  to  the  Supreme  Court 
from  such  decrees  in  the  same  manner  and  with  the  same  effect 
as  in  other  cases  in  equity,  except  that  notice  of  appeal  must  be 
served  and  filed  within  sixty  days  from  the  entry  of  the  decree. 
[L.  1909,  c.  216,  p.  326,  §  26;  L.  1913,  c.  97,  p.  161.] 


18  WATER  LAWS  OF  THE  STATE  OF  OREGON 

§  6651.  Clerk  Shall  Transmit  Transcript  to  Clerk  of  Board. 

The  clerk  of  the  circuit  court,  immediately  upon  the  entry 
of  any  decree  by  the  circuit  court  or  by  the  judge  thereof,  shall 
transmit  a  certified  copy  of  said  decree  to  the  secretary  of 
the  Board  of  Control.  The  secretary  shall  immediately  enter 
the  same  upon  the  records  of  such  office  and  the  State  Engineer 
shall  forthwith  issue  to  the  superintendent  or  superintendents 
of  water  divisions  instructions  in  compliance  with  the  said 
decree,  and  in  execution  thereof.  [L.  1909,  c.  216,  p.  327,  §  27.] 

§  6652.  Distribution. 

During  the  time  the  hearing  of  the  order  of  the  Board  of 
Control  is  pending  in  the  circuit  court,  and  until  a  certified 
copy  of  the  judgment,  order  or  decree  of  the  circuit  court  is 
transmitted  to  the  Board  of  Control,  the  division  of  water 
from  the  stream  involved  in  such  appeal  shall  be  made  in 
accordance  with  the  order  of  the  board.  [L.  1909,  c.  216, 
p.  327,  §  28.] 

§  6653.  Stay  Bond. 

At  any  time  after  the  determination  of  the  board  has  been 
entered  of  record,  the  operation  thereof  may  be  stayed  in 
whole  or  in  part  by  any  party  by  filing  a  bond  in  the  circuit 
court  wherein  such  determination  is  pending  in  such  amount 
as  the  judge  thereof  may  prescribe,  conditioned  that  such 
party  will  pay  all  damages  that  may  accrue  by  reason  of  such 
determination  not  being  enforced.  Immediately  upon  the 
filing  and  approval  of  such  bond,  the  clerk  of  the  circuit  court 
shall  transmit  to  the  Board  of  Control  a  certified  copy  of 
such  bond,  which  shall  be  recorded  in  the  records  by  such 
board,  and  the  State  Engineer  shall  immediately  give  notice 
thereof  to  the  superintendent  of  the  proper  water  division. 
[L.  1909,  c.  216,  p.  327,  §  29.] 

§6654.  Rehearing. 

Within  six  months  from  the  date  of  the  decree  of  the  circuit 
court  determining  the  rights  upon  any  stream,  or  if  appealed 
within  six  months  from  the  decision  of  the  Supreme  Court,  the 
Board  of  Control,  or  any  party  interested,  may  apply  to  the 
circuit  court  for  a  rehearing  upon  grounds  to  be  stated  in  the 
application.  Thereupon,  if  in  the  discretion  of  the  court  it 
shall  appear  that  there  are  good  grounds  for  the  rehearing,  the 
circuit  court,  or  judge  thereof,  shall  make  an  order  fixing  a 
time  and  place  when  such  application  shall  be  heard.  The 
clerk  of  the  circuit  court  shall,  at  the  expense  of  the  petitioner, 
forthwith  mail  written  notice  of  said  application  to  the  Board 
of  Control  and  to  every  party  interested,  and  state  in  such 


.WATER  LAWS  OF  THE  STATE  OF  OREGON  19 

notice  the  time  and  place  when  such  application  will  be  heard. 
[L.  1909,  c.  216,  p.  328,  §  30.] 

§  6655.  Conclusive,  When. 

The  determination  of  the  Board  of  Control  as  confirmed  or 
modified  as  provided  by  this  act  in  proceedings  shall  be  conclu- 
sive as  to  all  prior  rights  and  the  rights  of  all  existing  claim- 
ants upon  the  stream  or  other  body  of  water  lawfully  em- 
braced in  the  determination.  [L.  1909,  c.  216,  p.  328,  §  33.] 

§  6656.  Duty  of  Water  Right  Claimants. 

Whenever  proceedings  shall  be  instituted  for  the  determina- 
tion of  the  rights  to  the  use  of  any  water,  it  shall  be  the  duty 
of  all  claimants  interested  therein  to  appear  and  submit  proof 
of  their  respective  claims,  at  the  time  and  in  the  manner  re- 
quired by  law ;  and  any  such  claimant  who  shall  fail  to  appear 
in  such  proceedings  and  submit  proof  of  his  claims  shall  be 
barred  and  estopped  from  subsequently  asserting  any  rights 
theretofore  acquired  upon  the  stream  or  other  body  of  water 
embraced  in  such  proceedings,  and  shall  be  held  to  have  for- 
feited all  rights  to  the  use  of  said  water  theretofore  claimed  by 
him.  Any  person,  association  or  corporation  interested  in  the 
water  of  any  stream  upon  whom  or  which  no  service  of  notice 
shall  have  been  had  of  the  pendency  of  proceedings  for  the  de- 
termination of  the  rights  to  the  use  of  the  water  of  said  stream, 
and  who  or  which  shall  have  no  actual  knowledge  or  notice  of 
the  pendency  of  said  proceedings,  may  at  any  time  prior  to  the 
expiration  of  one  year  after  the  entry  of  the  determination 
of  the  board,  file  a  petition  to  intervene  in  said  proceedings. 
Such  petition  shall  contain,  among  other  things,  all  matters 
required  by  this  act,  of  claimants  who  have  been  duly  served 
with  notice  of  said  proceedings  and  also  a  statement  that  the 
intervenor  had  no  actual  knowledge  or  notice  of  the  pendency 
of  said  proceeding.  Upon  the  filing  of  said  petition  in  inter- 
vention, the  petitioner  shall  be  allowed  to  intervene  upon  such 
terms  as  may  be  equitable,  and  thereafter  shall  have  all  rights 
vouchsafed  by  this  act  to  claimants  who  have  been  duly  served. 
[L.  1909,  c.  216,  p.  328,  §  34.] 

§  6657.  Proof  Open  to  Inspection — Who  May  Contest. 

Whenever  the  rights  to  the  waters  of  any  stream  have  been 
determined  as  herein  provided,  and  it  shall  appear  by  the 
records  of  such  determination  that  it  had  not  been  at  one  and 
the  same  proceeding,  then  in  such  case  the  Board  of  Control 
may  open  to  public  inspection,  all  proofs  or  evidence  of  rights 
to  the  water,  and  the  findings  of  the  board  in  relation  thereto 
in  the  manner  provided  in  Section  6642 ;  and  any  person,  cor- 


20  WATER  LAWS  OF  THE  STATE  OF  OREGON 


porations,  or  associations  who  may  desire  to  contest  the  claims 
or  rights  of  other  persons,  corporations,  or  associations,  as 
set  forth  in  the  proofs  or  established  by  the  board,  shall  pro- 
ceed in  the  manner  provided  for  in  Sections  6643,  6644,  and 
6646 ;  provided,  that  contests  may  not  be  entered  into  and  shall 
not  be  maintained  except  between  claimants  who  were  not  par- 
ties to  the  same  adjudication  proceedings  in  the  original  hear- 
ings. [L.  1909,  c.  216,  p.  329,  §  35.] 

(c)    DISTRIBUTION  OF  WATER. 
§6615.  Districts. 

The  Board  of  Control  shall  divide  each  water  division  into 
water  districts,  and  said  water  districts  to  be  so  constituted 
as  to  secure  the  best  protection  to  the  claimants  for  water  and 
the  most  economical  supervision  on  the  part  of  the  State ;  said 
water  districts  shall  not  be  created  until  a  necessity  therefor 
shall  arise,  but  shall  be  created  from  time  to  time  as  the 
claims  thereof  from  the  streams  of  the  State  shall  be  deter- 
mined. [L.  1909,  c.  216,  p.  329,  §  36.] 

§  6616.  Water  Master,  How  Appointed. 

There  shall  be  appointed  by  the  Board  of  Control,  one  water 
master  for  each  water  district,  who  shall  be  a  resident  of  the 
district  he  is  appointed  for  and  who  shall  have  been  a  resident 
of  said  district  for  one  year  immediately  prior  to  the  date  of 
his  appointment,  shall  be  selected  from  persons  recommended 
by  the  superintendent  of  the  water  division  in  which  such 
water  district  is  situated.  Each  water  master  shall  hold  his 
office  until  his  successor  is  elected  and  shall  have  qualified,  and 
the  Board  of  Control  shall,  by  like  selection  and  appointment, 
fill  all  vacancies,  which  shall  occur  in  the  office  of  water 
master.  [L.  1909,  c.  216,  p.  329,  §  37.] 

§  6617.  Duty  of  Water  Master. 

It  shall  be  the  duty  of  the  said  water  masters  to  divide  the 
water  of  the  natural  streams  or  other  sources  of  supply  of  his 
district  among  the  several  ditches  and  reservoirs,  taking  water 
therefrom,  according  to  the  rights  of  each  respectively,  in 
whole  or  in  part,  and  to  shut  and  fasten,  or  cause  to  be  shut 
and  fastened,  the  head  gates  of  ditches,  and  shall  regulate  or 
cause  to  be  regulated,  the  controlling  works  of  reservoirs,  in 
time  of  scarcity  of  water,  as  may  be  necessary  by  reason  of  the 
rights  existing  from  said  streams  of  his  district.  The  water 
master  shall  have  authority  to  regulate  the  distribution  of 
water  among  the  various  users  under  any  partnership  ditch  or 
reservoir,  where  rights  have  been  determined,  in  accordance 
with  existing  decrees.  Whenever,  in  the  pursuance  of  his 


WATER  LAWS  OF  THE  STATE  OF  OREGON  21 

duties,  the  water  master  regulates  a  head  gate  to  a  ditch  or  the 
controlling  works  of  reservoirs,  it  shall  be  his  duty  to  attach  to 
such  head  gate  or  controlling  works,  a  written  notice  properly 
dated  and  signed,  setting  forth  the  facts  that  such  head  gate  or 
controlling  works  has  been  properly  regulated  and  is  wholly 
under  his  control,  and  such  notice  shall  be  legal  notice  to  all 
parties  interested  in  the  division  and  distribution  of  the  Water 
of  such  ditch  or  reservoir.  It  shall  be  the  duty  of  the  district 
attorney  to  appear  for,  or  on  behalf  of  the  division  superin- 
tendent or  any  water  master  in  any  case  which  may  arise  in 
the  pursuance  of  the  official  duties  of  any  such  officer  within 
the  jurisdiction  of  said  district  attorney.  [L.  1909,  c.  216, 
p.  330,  §  38.] 

Reference  to  determined  rights  in  a  stream  before  the  rights  and  priori- 
above  section  pertains  only  to  such  as  ties  of  the  parties  had  been  determined 
are  determined  pursuant  to  the  provi-  under  said  act,  and  the  water  master 
sions  of  Sections  6635-6659,  inclusive,  was  not  entitled  to  compensation  for 
and  the  Board  of  Control  does  not  acting  in  such  unauthorized  distribu- 
have  jurisdiction  to  supervise  the  dis-  tion.  Wattles  v.  Baker  County.  59  Or. 
tribution  of  irrigation  water  taken  from  255. 

§  6618.  Water  Master  Shall  Prevent  Waste. 

Said  water  master  shall,  as  near  as  may  be,  divide,  regulate 
and  control  the  use  of  the  water  of  all  streams  within  his  dis- 
trict by  such  closing  or  partially  closing  of  the  head  gates  as 
will  prevent  the  waste  of  water,  or  its  use  in  excess  of  the 
volume  to  which  the  owner  of  the  right  is  lawfully  entitled,  and 
any  person  who  may  be  injured  by  the  action  of  any  water 
master,  shall  have  the  right  to  appeal  to  the  circuit  court  for 
an  injunction.  Such  injunction  shall  onlv  be  issued  in  case  it 
can  be  shown  at  the  hearing  that  the  water  master  has  failed 
to  carry  into  effect  the  order  of  the  Board  of  Control  or  decrees 
of  the  court  determining  the  existing  rights  to  the  use  of  water, 
[L.  1909,  c.  216,  p.  333,  §  39.] 

§  6619.  Pay  Of. 

Each  water  master  herein  provided  for  shall  receive  com- 
pensation at  the  rate  of  $5.00  per  day  for  each  day  he  shall  be 
actively  employed  in  the  duties  of  his  office.  Where  the  service 
may  be  improved  by  continuous  employment  and  upon  recom- 
mendation of  the  division  superintendent  and  the  approval  of 
the  county  court  of  the  county,  or  counties,  in  which  said  dis- 
trict is  located  by  an  order,  or  orders,  made  at  regular  term,  or 
terms  thereof,  when  sitting  for  the  transaction  of  county 
business,  he  shall  receive  pay  at  the  rate  of  $100.00  per  month, 
in  either  case  to  be  paid  by  the  county  in  which  the  work  is 
performed.  Each  water  master  shall  keep  a  true  and  just 
acount  of  time  spent  by  him  in  the  duties  of  each  county,  re- 
spectively, in  which  his  duties  may  extend,  and  he  shall  present 


Sisr.    3 


22  WATER  LAWS  OF  THE  STATE  OF  OREGON 

a  true  copy  thereof,  verified  by  oath,  to  the  county  court  sitting 
for  the  transaction  of  county  business  of  the  county  in  which 
his  work  may  be  performed.  And  the  county  court  shall,  upon 
approval  thereof  by  the  superintendent  of  the  water  division 
allow  and  pay  the  same;  provided,  any  water  master  may  be 
suspended  by  an  order  of  the  county  court  of  any  county  in 
which  his  district  may  lie  in  case  said  court  shall  find  and 
enter  an  order  to  the  effect  that  said  water  master  is  claiming 
more  time  than  the  public  service  requires,  and  during  such 
suspension  such  water  master  shall  receive  no  pay.  [L.  1909, 
c.  216,  p.  330,  §  40.] 

§  6620.  Employment  of  Assistants. 

Said  water  master  shall  have  power,  in  case  of  emergency, 
to  employ  suitable  assistants  to  aid  him  in  the  discharge  of  his 
duties.  Such  assistants  shall  take  the  same  oath  as  the  water 
master,  and  shall  obey  his  instructions,  and  each  shall  be 
entitled  to  such  compensation  as  his  services  may  demand  and 
as  the  superintendent  may  recommend,  not  to  exceed  in  any 
case,  $4.00  per  day  for  each  day  he  is  employed,  such  payments 
to  be  made  upon  certificates  of  the  division  superintendent  in 
the  same  manner  as  provided  for  the  payment  of  the  water 
master.  The  term  of  service  of  such  assistant  water  master 
may  be  terminated  at  any  time  by  the  division  superintendent, 
and  shall  in  no  event  continue  after  the  emergency  has  ceased 
to  exist.  [L.  1909,  c.  216,  p.  331,  §  41.] 

§  6621.  Water  Masters  to  Begin  Work,  When. 

When  arrangements  are  not  made  for  employment  of  a 
water  master  at  a  monthly  rate,  as  provided  in  Section  6619, 
the  said  water  master  shall  begin  his  work  upon  written  de- 
mand being  made  upon  him  therefor  by  one  or  more  water 
users.  Such  written  demand  for  his  services  shall  be  attached 
to  his  bill  for  services  and  forwarded  with  it  to  the  county 
commissioners  of  the  proper  county.  Where  the  said  water 
master  is  employed  by  the  month  he  shall  begin  work  and 
terminate  his  services  as  the  superintendent  of  his  water  divi- 
sion may  direct.  The  division  superintendent  may,  under 
any  condition,  call  upon  the  water  master  for  work  within  his 
district  whenever  the  necessity  therefor  may  in  his  judgment 
arise.  [L.  1909,  c.  216,  p.  331,  §  42.] 

§  6622.  Interference  with  Head  Gate— Penalty. 

Any  person  who  shall  wilfully  open,  close,  change  or  inter- 
fere with  any  lawfully  established  head  gate  or  water  boy 
without  authority,  or  who  shall  wilfully  use  water  or  conduct 
water  into  or  through  his  ditch  which  has  been  lawfully  denied 


WATER  LAWS  OF  THE  STATE  OF  OREGON  23 

him  by  the  water  master  or  other  competent  authority,  shall  be 
deemed  guilty  of  a  misdemeanor.  The  possession  or  use  of 
water  when  the  same  shall  have  been  lawfully  denied  by  the 
water  master  or  other  competent  authority  shall  be  prima  facie 
evidence  of  the  guilt  of  the  person  using  it.  [L.  1909,  c.  216, 
p.  332,  §  43.] 

§  6623.  Power  of  Arrest. 

The  water  master,  or  his  assistants,  within  his  district  shall 
have  power  to  arrest  any  person  or  persons  violating  any  of 
the  provisions  of  this  act  and  turn  them  over  to  the  sheriff  or 
other  competent  police  officer  within  the  county;  and  imme- 
diately upon  delivering  any  such  person  so  arrested  into  the 
custody  of  the  sheriff,  it  shall  be  the  duty  of  the  water  master 
making  such  arrest  to  immediately,  in  writing  and  upon  oath, 
make  complaint  before  the  proper  justice  of  the  peace  against 
the  person  so  arrested.  [L.  1909,  c.  216,  p.  332,  §  44.] 

§  6660.  Head  Gate,  Maintenance  Of. 

The  owner  or  owners  of  any  ditch  or  canal  shall  maintain, 
to  the  satisfaction  of  the  division  superintendent  of  the  division 
in  which  the  irrigation  works  are  located,  a  substantial  head 
gate  at  the  point  where  the  water  is  diverted,  which  shall  be  of 
such  construction  that  it  can  be  locked  and  kept  closed  by  the 
water  master;  and  such  owners  shall  construct  and  maintain 
when  required  by  the  division  superintendent,  suitable  measur- 
ing devices  at  such  points  along  such  ditch  as  may  be  necessary 
for  the  purpose  of  assisting  the  water  master  in  determining 
the  amount  of  water  that  is  to  be  diverted  into  said  ditch  from 
the  stream,  or  taken  from  it  by  the  various  users.  Any  and 
every  owner  or  manager  of  a  reservoir,  located  across  or  upon 
the  bed  of  a  natural  stream,  shall  be  required  to  construct,  and 
maintain,  when  required  by  the  division  superintendent,  a 
measuring  device  of  a  plan  to  be  approved  by  the  State 
Engineer,  below  such  reservoir,  and  a  measuring  device  above 
such  reservoir  on  each  or  every  stream  or  source  of  supply  dis- 
charging into  such  reservoir,  for  the  purpose  of  assisting  the 
water  master  or  superintendent  in  determining  the  amount  of 
water  to  which  appropriators  are  entitled  and  thereafter  divert- 
ing it  for  such  appropriators'  use.  When  it  may  be  neces- 
sary for  the  protection  of  other  water  users,  the  division  super- 
intendent may  require  flumes  to  be  installed  along  the  line  of 
any  ditch.  If  any  such  owner  or  owners  of  irrigation  works 
shall  refuse  or  neglect  to  construct  and  put  in  such  head  gates, 
flumes,  or  measuring  devices  after  ten  days  notice,  the  division 
superintendent  may  close  such  ditch,  and  the  same  shall  not  be 
opened  or  any  water  diverted  from  the  source  of  supply,  under 


24  WATER  LAWS  OF  THE  STATE  OP  OREGON 


the  penalties  prescribed  by  law  for  the  opening  of  head  gates 
lawfully  closed  until  the  requirements  of  the  division  superin- 
tendent as  to  such  head  gate,  flumes,  or  measuring  device  have 
been  complied  with,  and  if  any  owner  or  manager  of  a  reser- 
voir located  across  the  bed  of  a  natural  stream  shall  neglect  or 
refuse  to  put  in  such  measuring  device  after  ten  days'  notice  by 
the  division  superintendent,  such  superintendent  may  open  the 
sluice  gate  or  outlet  of  such  reservoir  and  the  same  shall  not  be 
closed  under  penalties  of  the  law  for  changing  or  interfering 
with  head  gates,  until  the  requirements  of  the  division  superin- 
tendent as  to  such  measuring  devices  are  complied  with.  [L. 
1909,  c.  216,  p.  335,  §  55.] 

§  6661.  Engineer's  Authority  to  Inspect. 

The  State  Engineer  shall  have  authority  to  examine  and 
inspect,  during  construction,  any  dam,  authorized  under  the 
provisions  of  this  chapter,  or  any  ditch,  canal,  or  other  work, 
and  at  the  time  of  such  inspection,  or  thereafter,  he  shall  notify 
the  parties  constructing  such  dam,  or  other  works,  of  any 
addition  or  alteration  which  he  considers  necessary  for  the 
security  of  the  work  or  the  safety  of  any  person  or  persons 
residing  on  or  owning  land  in  the  vicinity  of  such  works,  or 
for  the  safety  of  their  property.  [L.  1909,  c.  216,  p.  336,  §56.] 

§  6662.  Inspection,  When  Required. 

Should  any  person  or  persons  residing  on  or  owning  land  in 
the  neighborhood  of  any  irrigation  works  after  completion,  or 
in  course  of  construction,  apply  to  the  State  Engineer  in  writ- 
ing desiring  an  inspection  of  such  works,  the  State  Engineer 
may  order  an  inspection  thereof.  Before  doing  so  he  may 
require  the  applicant  for  such  inspection  to  make  a  deposit  of  a 
sum  of  money  sufficient  to  pay  the  expenses  of  an  inspection, 
and  in  case  the  application  appears  to  him  not  to  have  been 
justified,  he  may  cause  the  whole  or  part  of  such  expenses  to 
be  paid  out  of  such  deposit.  In  case  the  application  appears  to 
the  State  Engineer  to  have  been  justified,  he  may  require  the 
owner  of  the  works  to  pay  the  whole  or  any  part  of  the 
expenses  of  the  inspection,  and  the  same  shall  constitute  a  valid 
lien  against  the  works,  which  may  be  enforced  in  the  same 
manner  as  provided  for  the  enforcement  of  mechanics'  liens. 
[L.  1909,  c.  216,  p.  336,  §  57.] 

§  6663.  Duty  of  Water  Master  and  Costs — How  Payable. 

Whenever  the  owner,  manager  or  lessee  of  a  reservoir,  con- 
structed under  the  provsions  of  this  act,  shall  desire  to  use 
the  bed  of  a  stream,  or  other  watercourse,  for  the  purpose  of 
carrying  stored  or  imopunded  water  from  the  reservoir  to  the 
consumer  thereof,  he  shall  in  writing,  notify  the  water  master 


WATER  LAWS  OF  THE  STATE  OP  OREGON  25 


of  the  district  in  which  the  stored  or  impounded  water  is  to  be 
used,  giving  the  date  when  it  is  proposed  to  discharge  water 
from  such  reservoir,  its  volume,  and  the  names  of  all  persons 
and  ditches  entitled  to  its  use.  It  shall  then  be  the  duty  of  such 
water  master  to  close,  or  so  adjust  the  headgates  of  all  ditches 
from  the  stream  or  watercourse,  not  entitled  to  the  use  of  such 
stored  water,  as  will  enable  those  having  the  right  to  secure  the 
volume  to  which  they  are  entitled.  The  water  master  shall 
keep  a  true  and  just  account  of  the  time  spent  by  him  in  the 
discharge  of  his  duties  as  defined  in  this  section,  and  it  shall  be 
the  duty  of  the  county  commissioners  of  the  county  wherein 
the  expense  is  incurred,  to  present  a  bill  of  one-half  the 
expense  so  incurred  to  the  reservoir  owner,  manager  or  lessee, 
and  if  such  owner,  manager  or  lessee  shall  neglect  for  thirty 
days,  after  the  presentation  of  such  bill  of  costs,  to  pay  the 
same,  the  said  costs  shall  be  made  a  charge  upon  said  reservoir 
and  shall  be  collected  as  delinquent  taxes  until  the  complete 
payment  of  such  bill  of  costs  has  been  made.  [L.  1909,  c.  216, 
p.  337,  §  59.] 

§  6664.  Joint  Owners — Responsibility. 

In  all  cases  where  ditches  are  owned  by  two  or  more  per- 
sons and  one  or  more  of  such  persons  shall  fail  or  neglect  to  do 
a  proportionate  share  of  the  work  necessary  for  the  proper 
maintenance  and  operation  of  such  ditch  or  ditches,  or  to  con- 
struct suitable  head  gates  or  measuring  devices  at  the  points 
where  water  is  diverted  from  the  main  ditch,  such  owner  or 
owners  desiring  the  performance  of  such  work  may,  after 
having  given  ten  days'  written  notice  to  such  other  owner  or 
owners  who  have  failed  to  perform  such  proportionate  share 
of  the  work,  necessary  for  the  operation  and  maintenance  of 
said  ditch  or  ditches,  perform  such  share  of  the  work,  and 
recover  therefor  from  such  person  or  persons  in  default  the 
reasonable  expense  of  such  work.  [L.  1909,  c.  216,  p.  338, 
§61.] 

§  6665.  Lien  for  Work  Performed  on  Ditch. 

Upon  the  failure  of  any  co-owner  to  pay  his  proportionate 
share  of  such  expense,  as  mentioned  in  the  preceding  section, 
within  thirty  days  after  receiving  a  statement  of  the  same  as 
performed  by  his  co-owner  or  owners,  such  person  or  persons 
so  performing  such  labor  may  secure  payment  of  said  claim  by 
filing  an  itemized  and  sworn  statement  thereof,  setting  forth 
the  date  of  the  performance  and  the  nature  of  the  labor  so 
performed,  with  the  county  clerk  of  the  county  wherein  said 
ditch  is  situated,  and  when  so  filed  it  shall  constitute  a  valid 
lien  agamst  the  interest  of  such  person  or  persons  in  default, 


26  WATER  LAWS  OF  THE  STATE  OF  OREGON 


which  said  lien  may  be  established  and  enforced  in  the  same 
manner  as  provided  by  law  for  the  enforcement  of  mechanics' 
liens.  [L.  1909,  c.  216,  p.  338,  §  62.] 

§  6666.  Regulation  of  Ditches  and  Reservoirs. 

Whenever  any  water  users  from  any  ditch  or  reservoir, 
either  among  themselves  or  with  the  owner  thereof  are  unable 
to  agree  relative  to  the  distribution  or  division  of  water 
through  or  from  sa:d  ditch  or  reservoir,  it  shall  be  lawful  for 
either  such  owner  or  such  water  user  to  apply  to  the  water 
master  of  the  district  in  which  said  ditch  or  reservoir  is 
located,  by  written  notice,  setting  forth  such  facts,  asking  the 
water  master  to  take  charge  of  such  ditch  or  reservoir  for 
the  purpose  of  making  a  just  division  or  distribution  of  water 
from  the  same  to  the  parties  entitled  to  use  thereof.  The  cir- 
cuit judge  may  also  request  the  water  master  of  the  district 
to  take  charge  of  and  enforce  any  decree  relative  to  water 
rights  made  under  the  jurisdiction  of  said  court.  Upon 
receiving  such  request,  the  said  water  master  shall  take 
exclusive  charge  of  said  ditch  or  reservoir  for  the  purpose  of 
dividing  or  distributing  the  water  therefrom  in  accordance 
with  established  rights  and  continuing  the  said  work  until  the 
necessity  therefor  shall  cease  to  exist.  Said  rights  shall  be 
deemed  to  have  been  established  when  the  same  have  been 
determined  by  the  Board  of  Control,  by  any  decree  of  the 
circuit  court  of  this  State  or  by  contract  or  other  written 
agreement.  The  superintendent  of  a  water  division  in  which 
said  ditch  or  reservoir  is  located  may,  at  his  discretion,  order 
provision  to  be  made  for  the  pay  of  said  water  master  by  the 
parties  interested  for  his  services  before  such  water  master 
takes  charge  of  such  work.  [L.  1909,  c.  216,  p.  338,  §  63;  L. 
1913,  c.  86,  p.  140,  §  4.] 

§  5.  Rotation. 

To  bring  about  a  more  economical  use  of  the  available 
water  supply,  it  shall  be  lawful  for  water  users  owning  lands 
to  which  are  attached  water  rights,  to  rotate  in  the  use  of  the 
supply  to  which  they  may  be  collectively  entitled,  and  when- 
ever two  or  more  water  users  shall  notify  the  water  master 
that  they  desire  to  use  the  water  by  rotation  and  shall  present 
a  written  agreement  as  to  the  manner  of  such  rotation,  the 
water  master  shall  distribute  the  water  in  accordance  with 
such  written  agreement.  [L.  1913,  c.  86,  p.  140.] 

§6667.  Injunctions. 

In  suits  for  injunction  affecting  the  use  of  water  from 
streams  upon  which  the  rights  to  water  have  been  determined, 


WATER  LAWS  OF  THE  STATE  OF  OREGON  27 

no  restraining  order  shall  be  granted  before  hearing  had  after 
at  least  three  days'  notice  thereof,  served  upon  all  persons 
defendant.  All  suits  for  injunction  involving  the  use  of  water 
shall  be  heard,  either  in  term  time  or  during  vacation,  not 
later  than  fifteen  days  after  issues  joined,  unless  for  good 
cause  shown  further  time  be  allowed.  [L.  1909,  c.  216,  p.  339, 
§64.] 

§  6668.  Water  Appurtenant  to  Land  for  Irrigation  Purposes. 

All  water  used  in  this  State  for  irrigation  purposes  shall 
remain  appurtenant  to  the  land  upon  which  it  is  used;  pro- 
vided, that  if  for  any  reason  it  should  at  any  time  become  im- 
practicable to  beneficially  or  economically  use  water  for  the 
irrigation  of  any  land  to  which  the  water  is  appurtenant,  said 
right  may  be  severed  from  said  land,  and  simultaneously  trans- 
ferred, and  become  appurtenant  to  other  land,  without  losing 
priority  of  right  theretofore  established,  if  such  change  can  be 
made  without  detriment  to  existing  rights,  on  the  approval  of 
an  application  of  the  owner  to  the  Board  of  Control.  Before 
the  approval  of  such  transfer  an  inspection  shall  be  made  by 
the  proper  division  superintendent,  who  shall  submit  his 
report  to  the  Board  of  Control,  whereupon,  by  order,  the  board 
shall  approve  or  disapprove  such  transfer  and  prescribe  the 
conditions  therefor.  Such  order  shall  be  subject  to  appeal  as 
in  this  act  provided.  [L.  1909,  c.  216,  p.  339,  §  65.] 

See  Cookingham  v.  Lewis,  114   Pac.   88. 

§  6669.  Unlawful  Use  of  Water  and  Waste. 

The  unauthorized  use  of  water  to  which  another  person  is 
entitled,  or  the  willful  waste  of  water  to  the  detriment  of 
another,  shall  be  a  misdemeanor,  and  the  possession  or  use  of 
such  water  without  legal  right,  shall  be  prima  facie  evidence 
of  the  guilt  of  the  person  using  it.  It  shall  also  be  a  misde- 
meanor to  use,  store,  or  divert  any  water  until  after  the  issu- 
ance of  permit  to  appropriate  such  waters.  [L.  1909,  c.  216, 
p.  340,  §  66.] 

§  6670.  Obstructing  Works. 

Whenever  any  appropriator  of  water  has  the  lawful  right 
of  way  for  the  storage,  diversion,  or  carriage  of  water,  it  shall 
be  unlawful  to  place  or  maintain  any  obstruction  that  shall 
interfere  with  the  use  of  the  works,  or  prevent  convenient 
access  thereto.  Any  violation  of  the  provisions  of  this  section 
shall  be  a  misdemeanor.  [L.  1909,  c.  216,  p.  340,  §  67.] 

(d)    GENERAL. 
§  6597.  State  Engineer, 
r    As  soon  as  possible  after  this  act  shall  become  effective  a 


28  WATER  LAWS  OP  THE  STATE  OF  OREGON 

State  Engineer,  technically  qualified  and  experienced  as  an 
hydraulic  engineer,  shall  be  appointed  by  the  Governor.  He 
shall  hold  his  office  until  January  1,  1911,  unless  sooner 
removed  by  the  Governor  for  cause,  and  until  his  successor 
shall  have  been  elected  and  shall  have  qualified.  At  the  general 
election  held  in  November,  1910,  and  every  four  years  there- 
after, there  shall  be  elected  a  State  Engineer  by  the  voters  of 
the  State,  whose  term  of  office  shall  be  four  years,  and  until 
his  successor  is  elected  and  qualified.  He  shall  receive  a 
salary  of  $2,400  per  annum  and  actual  necessary  traveling 
expenses  while  away  from  his  office  in  the  discharge  of  official 
duties,  payable  as  other  State  officers  are  paid.  He  shall  per- 
form such  duties  as  are  prescribed  by  law,  and  may  employ 
assistants  and  purchase  materials  and  supplies  necessary  for 
the  proper  conduct  and  maintenance  of  his  department  in  pur- 
suance of  appropriations  as  made  from  time  to  time  for  such 
purposes.  [L.  1909,  c.  216,  p.  320,  §  8.] 

§  6601.  Fees. 

The  following  fees  shall  be  collected  by  the  State  Engineer 
in  advance,  and  be  paid  by  him  into  the  general  fund  of  the 
State  treasury  on  the  last  day  of  March,  June,  September, 
and  December  of  each  year  :— 

1.  For  examining  an  applicant  for  permit  to  appropriate 
water,  $3.00. 

2.  For  filing  and  recording  permit  to  appropriate  water 
for  irrigation  purposes,  fifteen  cents  per  acre  for  each  acre  to 
be  irrigated  up  to  and  including  one  hundred  acres,  and  five 
cents  per  acre  for  each  acre  in  excess  of  one  hundred  and  up  to 
and  including  one  thousand  acres;  and  one  cent  per  acre  for 
each  acre  in  excess  of  one  thousand  acres,  or  in  case  the  appli- 
cation is  for  power  purposes,  twenty-five  cents  for  each  theo- 
retical horsepower  to  be  developed  up  to  and  including  one 
hundred,  and  ten  cents  for  each  horsepower  in  excess  of  one 
hundred  and  up  to  and  including  one  thousand,  and  five  cents 
for  each  horsepower  in  excess  of  one  thousand ;  or,  in  case  the 
application  is  for  any  other  purpose,  including  applications  by 
municipalities   for   power   purposes,     $5.00    for    filing    and 
recording  each  permit. 

3.  For  filing  or  recording  any  other  water  right  instru- 
ment, $1.00  for  the  first  hundred  words  and  ten  cents  for  each 
additional  hundred  words  or  fraction  thereof. 

4.  For  making  copy  of  any  document  recorded  or  filed  in 
his  office,  ten    cents    for   each    hundred    words    or    fraction 
thereof;  but  where  the  amount  exceeds  $5.00,  then  only  the 
actual  cost  in  excess  of  that  amount  shall  be  charged. 


WATER  LAWS  OP  THE  STATE  OF  OREGON  29 

5.  For  certifying  to  copies,  documents,  records,  or  maps, 
$1.00  for  each  certificate. 

6.  For  blue  print  copy  of  any  map  or  drawing,  ten  cents 
per  square  foot  or  fraction  thereof.     For  such  other  work  as 
may  be  required  of  his  office,  actual  cost  of  the  work.  [L.  1905, 
c.  228,  p.  404,  §  9;  L.  1909,  c.  216,  p.  334,  §  52.] 

BOARD  OF  CONTROL  SHALL  HEREAFTER  BE  DESIGNATED 
"STATE  WATER  BOARD." 

Section  1.  That  the  Board  of  Control,  provided  for  and 
created  by  the  provisions  of  Section  9,  Chapter  261,  General 
Laws  of  Oregon  for  1909,  the  same  being  Section  6603,  Lord's 
Oregon  Laws,  shall  hereafter  be  known  officially  and  entitled 
and  designated  as  the  "State  Water  Board/'  and  shall,  as  here- 
tofore, consist  of  the  State  Engineer  and  the  superintendents  of 
the  water  divisions  within  the  State.  Said  board  shall  have  the 
same  powers  and  perform  the  same  duties  as  prescribed  by 
law  for  said  Board  of  Control,  and  wherever  the  words 
"board,"  "the  board,"  or  "Board  of  Control,"  are  used  or 
appear  in  any  of  the  provisions  of  said  Chapter  261,  General 
Laws  of  Oregon  for  1909,  or  any  act  or  acts  amendatory 
thereof,  or  act  or  acts  referring  to  said  Board  of  Control,  as 
created  by  said  section,  the  same  shall  be  deemed  and  con- 
strued to  mean  the  "State  Water  Board,"  which  is  hereby 
made  the  official  title  of  said  board. 

Section  2.  Nothing  in  this  act  contained  shall  be  deemed, 
construed  or  taken  to  be  an  amendment  or  modification  of  any 
of  the  provisions  of  Chapter  216,  General  Laws  of  Oregon  for 
1909,  or  acts  amendatory  thereof,  except  as  to  the  official 
title  of  the  said  board  created  by  the  provisions  of  said  Chap- 
ter 216.  [L.  1913,  c.  82,  p.  136.] 

§  6603.  Board  of  Control. 

The  State  Engineer  and  the  superintendents  of  the  two 
water  divisions  shall  constitute  a  Board  of  Control,  which 
shall,  under  such  regulations  as  may  be  prescribed  by  law, 
have  the  supervision  of  the  waters  of  the  State,  and  of  their 
appropriation,  distribution,  and  diversion,  and  of  the  various 
officers  connected  therewith.  The  decisions  of  said  board  shall 
be  subject  to  appeal  to  the  circuit  and  supreme  courts,  which 
appeal  shall  be  governed  by  the  practice  in  suits  in  equity, 
unless  otherwise  provided  herein.  Said  board  shall  have  an 
office  in  the  Capitol  at  Salem,  and  shall  hold  two  regular  meet- 
ings each  year  for  the  transaction  of  such  business  as  may 
come  before  it,  the  first  of  said  meetings  to  begin  on  the 
second  Wednesday  in  April  and  the  second  on  the  third 
Wednesday  in  November.  The  State  Engineer  shall  be  ex 


30  WATER  LAWS  OF  THE  STATE  OF  OREGON 

officio  president  of  said  board,  and  shall  have  a  right  to  vote 
on  all  questions  coming  before  it.  A  majority  of  said  board 
shall  constitute  a  quorum  to  transact  business.  The  board 
shall  have  power  to  adjourn  meetings  from  time  to  time,  and  to 
meet  in  special  session  at  the  call  of  the  president,  or  of  any 
two  members.  Notice  of  any  special  meeting  must  be  given 
by  registered  mail  to  each  member  three  days  before  the  date 
thereof,  but  such  meeting  may  be  held  at  any  time  when  all 
members  of  the  board  are  present  [L.  1909,  c.  216,  p.  321, 
§9.] 

NOTE:  Appeals  to  circuit  court,  within  what  time:  Section  550,  Lord's 
Oregon  Laws. 

§  6604.  Secretary  and  Other  Assistants — Salary. 

The  Board  of  Control  shall  have  authority,  with  power  of 
removal,  to  appoint  a  secretary,  who  shall  receive  a  salary  of 
$1,200  per  annum.  He  may  be  required  by  the  board  to  fur- 
nish such  bond  as  it  may  deem  necessary,  for  the  faithful 
performance  of  his  duties.  The  duties  of  the  secretary  shall 
consist  in  keeping  a  full,  true,  and  complete  record  of  the 
transactions  of  the  Board  of  Control,  and  he  shall  certify, 
under  seal,  all  water  right  certificates  made  according  to  law. 
He  shall  perform  such  other  duties  as  may  be  imposed  by  law 
or  required  of  him  by  the  board.  Said  board  shall  also  have  the 
power  to  employ  such  other  assistants  and  purchase  materials 
and  supplies  as  may  be  necessary  for  the  proper  conduct  of 
its  business.  [L.  1909.  c.  216,  p.  321,  §  10.] 

§  6605.  Authorized  to  Administer  Oaths. 

The  members  of  the  Board  of  Control  may  administer  oaths 
in  the  performance  of  their  official  duties.  [L.  1909,  c.  216, 
p.  328,  §  31.] 

§  6606.  Fees. 

The  secretary  of  the  Board  of  Control  shall  collect  the 
following  fees,  which  shall  be  paid  in  advance,  and  accounted 
for  to  the  board,  which  fees  shall  be  paid  into  the  general  fund 
of  the  State  treasury  by  such  board  at  the  adjournment  of 
each  regular  meeting;  for  making  transcripts  of  the  records 
of  the  Board  of  Control  or  of  papers  or  documents  filed  with 
said  board,  $1.00  for  the  first  folio  and  ten  cents  for  each 
additional  folio.  For  attaching  certificate  and  seal  of  the 
board  to  each  transcript,  $1.00.  [L.  1909,  c.  216,  p.  328,  §  32.] 

§  6607.  Appropriations. 

There  is  hereby  appropriated  out  of  any  moneys  in  the  gen- 
eral fund  of  the  State  treasury  not  otherwise  appropriated  the 
sum  of  $10,000  annually,  or  so  much  thereof  as  may  be  neces- 
sary for  the  payment  of  the  salaries  and  expenses  incurred  by 


WATER  LAWS  OF  THE  STATE  OF  OREGON  31 

the  Board  of  Control  under  the  provisions  of  this  act.  There 
is  hereby  appropriated  out  of  any  moneys  in  the  general  fund 
of  the  State  treasury  not  otherwise  appropriated  the  sum  of 
$5,000  annually,  or  so  much  thereof  as  may  be  necessary  for 
the  salary  and  expenses  of  the  State  Engineer,  and  the  services 
of  assistants,  and  expenses  of  the  office  and  department  of 
the  State  Engineer,  which  appropriation  is  in  addition  to  the 
$5,000  annual  appropriation  heretofore  made  in  Section  6590. 
All  salaries  and  expenses  incurred,  and  material  and  supplies 
furnished  under  the  provisions  of  this  act  shall  be  paid  at  the 
same  time  and  in  the  same  manner  as  those  of  other  officers 
of  the  State.  [L.  1909,  c.  216,  p.  340,  §  69.] 

§  6608.  Attorney  General  and  District  Attorneys  Advisors  of  State 

Engineer. 

The  Attorney  General  and  the  district  or  prosecuting  attor- 
ney of  the  county  in  which  legal  questions  arise,  shall  be  the 
legal  advisors  of  the  State  Engineer  and  of  the  Board  of  Con- 
trol, and  shall  perform  any  and  all  legal  duties  necessary  in 
connection  with  their  work,  without  other  compensation  than 
their  salaries  as  fixed  by  law.  [L.  1909,  c.  216,  p.  338,  §  60.] 

§  6609.  Water  Divisions. 

The  State  of  Oregon  is  hereby  divided  into  two  water 
divisions,  as  follows :  Water  Division  No.  1  shall  consist  of 
all  lands  embraced  within  the  following  counties,  to-wit :  Ben- 
ton,  Clackamas,  Columbia,  Clatsop,  Coos,  Curry,  Douglas, 
Josephine,  Jackson,  Klamath,  Lake,  Lane,  Linn,  Lincoln, 
Marion,  Polk,  Multnomah,  Tillamook,  Yamhill  and  Washing- 
ton. Water  Division  No.  2  shall  consist  of  all  the  lands 
embraced  within  the  remaining  counties  of  the  State.  [L. 
1909,  c.  216,  p.  319,  §  2.] 

§  6610.  Division  Superintendents;  Appointments  and  Term  Of. 

There  shall  be  one  superintendent  for  each  water  division, 
who  shall,  immediately  after  tlr.s  act  becomes  effective,  be 
appointed  by  the  Governor  to  serve  until  January  1,  1911,  or 
until  his  successor  is  appointed  or  elected  and  shall  have  qual- 
ified, and  who  shall  be  a  resident  of  the  water  division  for 
which  he  is  appointed.  At  the  general  election  in  1910,  and 
every  four  years  thereafter  there  shall  be  elected  by  the  voters 
of  the  counties  of  the  first  and  second  water  divisions  of  the 
State  a  division  superintendent,  each  of  whom  shall  hold  office 
for  the  term  of  four  years,  or  until  his  successor  is  elected  and 
qualified.  Each  of  said  water  superintendents  shall  have 
knowledge  and  exrer'ence  relative  to  the  irrigation  law  and  its 
administration,  and  measurement  of  flowing  water,  evapora- 
tion, seepage,  and  common  alkalies,  drainage  and  the  hydro- 


32  WATER  LAWS  OP  THE  STATE  OF  OREGON 

graphic  features  of  the  water  division  in  which  the  candidate 
may  reside.     [L.  1909,  c.  216,  p.  319,  §  3] 

§6611.  Duties. 

Said  division  superintendent  shall  have  general  control  over 
the  water  masters  of  the  several  districts  within  his  division. 
He  shall  execute  the  laws  relative  to  the  distribution  of  water, 
and  perform  such  other  functions  as  may  be  assigned  to  him. 
He  shall  have  authority  to  make  such  reasonable  regulations 
to  secure  the  equal  and  fair  distribution  of  water  in  accord- 
ance with  the  determined  rights  as  may  be  needed  in  his 
division.  Such  regulations  shall  not  be  inconsistent  with  the 
laws  of  the  State.  [L.  1909,  c.  216,  p.  319,  §  4.] 

§  6612.  Appeal  From. 

Any  person,  association,  or  corporation  who  may  deem  him- 
self, or  itself,  aggrieved  by  any  such  order  or  regulation  of 
such  division  superintendent  shall  have  the  right  to  appeal 
from  the  same  to  the  Board  of  Control  by  filing  with  it  a  copy 
of  the  order  or  regulation  complained  of  and  a  statement  of 
the  manner  in  which  the  same  injuriously  affects  the  petition- 
er's interest.  The  board  shall,  after  due  notice,  hear  whatever 
testimony  may  be  adduced  by  the  petitioner,  either  orally  or  by 
affidavit,  and  shall  have  the  power  to  suspend,  amend  or  affirm 
the  order  complained  of.  [L.  1909,  c.  216,  p.  320,  §  5.] 

§  6613.  Water  Division  Superintendent  and  Compensation  Of. 

Each  division  superintendent  shall  receive  a  salary  of 
$2,400  per  annum,  in  full  compensation  for  all  his  services,  and 
shall  in  addition  thereto  be  paid  his  actual  traveling  expenses 
when  called  away  from  home  in  the  performance  of  his  duties. 
Such  salary  and  expenses  shall  be  r>aid  at  the  same  time  and  in 
the  same  manner  as  those  of  ether  State  officers.  Such 
division  superintendents  shall  not  engage  in  any  other  busi- 
ness. [L.  1909,  c.  216,  p.  320,  §  6.] 

§  6614.  Oath  and  Bond. 

Before  entering  upon  the  duties  of  his  office,  each  division 
superintendent  shall  take  and  subscribe  an  oath  faithfully  to 
perform  the  duties  of  his  off 'ce,  and  file  with  the  Secretary  of 
State  said  oath  and  his  official  bond  in  the  penal  sum  of  $5,000, 
with  surety,  or  sureties,  to  be  approved  by  the  Governor,  and 
conditions  for  the  faithful  discharge  of  the  duties  of  his  office. 
[L.  1909,  c.  216,  p.  320,  §  7.] 

§  6595.  Vested  Rights  Preserved. 

1.    Nothing  in  this  act  contained  shall  impair  the  vested 


WATER  LAWS  OP  THE  STATE  OF  OREGON  33 

right  of  any  person,  association  or  corporation  to  the  use  of 
water. 

2.  Actual  application  of  water  to  beneficial  use  prior  to  the 
passage  of  this  act  by  or  under  authority  of  any  riparian 
proprietor,  or  by  or  under  authority  of  his  or  its  predecessors 
in  interest,  shall  be  deemed  to  create  in  such  riparian  pro- 
prietor a  vested  right  to  the  extent  of  the  actual  application 
to  beneficial  use;  provided,  such  use  has  not  been  abandoned 
for  a  continuous  period  of  two  years. 

3.  And  where  any  riparian  proprietor,  or  under  authority 
of  any  riparian  proprietor  or  his  or  its  predecessor  in  interest, 
any  person  or  corporation  shall,  at  the  time  this  act  is  filed 
in  the  office  of  the  Secretary  of  State,  be  engaged  in  good  faith 
in  the  construction  of  works  for  the  application  of  water  to  a 
beneficial  use,  the  right  to  take  and  use  such  water  shall  be 
deemed   vested   in   such   riparian   proprietor;  provided,   such 
works  shall  be  completed  and  said  water  devoted  to  a  bene- 
ficial use  within  a  reasonable  time  after  the  passage  of  this  act. 
The  Board  of  Control,  in  the  manner  hereinafter  provided, 
shall  have  power  and  authority  to  determine  the  time  within 
which  such  water  shall  be  devoted  to  a  beneficial  use.     The 
right  to  water  shall  be  limited  to  the  quantity  actually  applied 
to  a  beneficial  use  within  the  time  so  fixed  by  the  Board  of 
Control. 

4.  Nor  shall  anything  in  this  act  contained  affect  relative 
priorities  to  the  use  of  water  between  or  among  parties  to  any 
decree  of  the  courts  rendered  in  causes  determined  or  pending 
prior  to  the  taking  effect  of  this  act. 

5.  Nor  shall  the  right  of  any  person,  association  or  corpora- 
tion, to  take  and  use  water  be  impaired  or  affected  by  any  of 
the  provisions  of  this  act  where  appropriations  have  been 
initiated  prior  to  the  filing  of  this  act  in  the  office  of  the  Secre- 
tary of  State,  and  such  appropriators,  their  heirs,  successors 
or  assigns,  shall,  in  good  faith  and  in  compliance  with  laws 
existing  at  the  time  of  filing  this  act  in  the  office  of  the  Secre- 
tary of  State,  commence  the  construction  of  works  for  the 
application  of  the  water  so  appropriated  to  a  beneficial  use, 
and  thereafter  prosecute  such  work  diligently  and  continuously 
to  completion,  but  all  such  rights  shall  be  adjudicated  in  the 
manner  provided  in  this  act. 

6.  The  Board  of  Control  shall  have  authority,  and  shall  for 
good  cause,  shown  upon  the  application  of  any  appropriator,  or 
user  of  water  under  an  appropriation  of  water  made  prior 
to  the  passage  of  this  act,  or  in  the  cases  mentioned  in  sub- 
divisions 3  and  5  of  this  section,  where  actual  construction 
work  has  been  commenced  prior  to  said  time  or  within  the 


34  WATER  LAWS  OF  THE  STATE  OF  OREGON 


time  provided  in  law  existing  at  the  time  of  filing  this  act  in 
the  office  of  the  Secretary  of  State,  to  prescribe  the  time  within 
which  the  full  amount  of  the  water  appropriated  shall  be 
applied  to  a  beneficial  use,  and  in  determining  said  time  shall 
grant  a  reasonable  time  after  the  construction  of  the  works 
or  canal  or  ditch,  used  for  the  diversion  of  the  water,  and  in 
doing  so  shall  take  into  consideration  the  cost  of  the  appro- 
priation and  application  of  such  water  to  a  beneficial  purpose, 
the  good  faith  of  the  appropriator,  the  market  for  water  or 
power  to  be  supplied,  the  present  demands  therefor,  and  the 
income  or  use  that  may  be  required  to  provide  fair  and  reason- 
able returns  upon  the  investment.  Upon  making  such  order 
the  Board  of  Control  shall  direct  the  State  Engineer  to  issue 
a  certificate  showing  such  determination.  For  good  cause 
shown  the  Board  of  Control  may  extend  the  time  by  granting 
further  certificates. 

7.  And     where     appropriations     of     water     heretofore 
attempted  have  been  undertaken  in  good  faith,  and  the  work  of 
construction  or  improvement  thereunder  has  been  in  good  faith 
commenced  and  diligently  prosecuted,  such  appropriations  shall 
not  be  set  aside  or  avoided,  in  proceedings  under  this  act, 
because  of  any  irregularity  or  insufficiency  of  the  notice  by 
law,  or  in  the  manner  of  posting,  recording,  or  publication 
thereof. 

8.  All  rights  granted  or  declared  by  this  act  shall  be  adju- 
dicated and  determined  in  the  manner  and  by  the  tribunals 
as  provided  in  this  act.     This  act  shall  not  be  held  to  bestow 
upon   any   person,   association  or  corporation,   any   riparian 
rights  where  no  such  rights  existed  prior  to  the  time  this  act 
takes  effect.     [L.  1909,  c.  216,  p.  340,  §  70] 

A  riparian  owner  of  land  on  a  stream  has   a   vested    right   for   such   water   of 

in  Oregon,  a  part  of  which  is  irrigated  which  he  cannot  be  deprived  by  another 

by  the  overflow  water  each  spring  and  above   him   by   an   appropriation    made 

produces   annual    crops   of    grass,    used  under   the   1909   act.      (Eastern   Oregon 

by    him    for    pasturage    and    hay,    and  Land  Co.  v.  Willow  River  Land  &  Irri- 

which     land     without     such     irrigation  (jation  Co.,  201   Fed.   203.) 
would   be  valueless  for  practical  uses, 

§  6671.  Penalty  for  Misdemeanors  Under  This  Act. 

All  violations  of  the  provisions  of  this  act,  declared  herein 
to  be  misdemeanors,  shall  be  punished  by  a  fine  not  exceeding 
$250.00  nor  less  than  $10.00,  or  by  imprisonment  in  the  county 
jail  not  exceeding  six  months,  or  by  both  such  fine  and  impris- 
onment. [L.  1909,  c.  216,  p.  340,  §  68.] 

§  6672.  Portland  Water  Supply. 

The  exclusive  right  to  the  use  of  the  waters  of  Bull  Run  and 
Little  Sandy  rivers  is  hereby  granted  to  the  city  of  Portland, 
and  all  rights  to  the  waters  of  the  lakes,  rivers  and  streams  of 


WATER  LAWS  OF  THE  STATE  OF  OREGON  35 

this  State  heretofore  acquired  for  the  purposes  of  municipal 
water  supply  are  hereby  confirmed,  and  no  rights  which  shall 
be  acquired  under  this  act  shall  impair  the  rights  of  any  muni- 
cipal corporation  to  waters  heretofore  taken.  The  Board  of 
Control  shall  reject,  or  grant,  subject  to  municipal  use,  all 
applications  where,  in  its  judgment,  the  appropriation  of  the 
waters  applied  for  impair  a  municipal  water  supply.  It  shall 
be  the  duty  of  municipal  corporations  of  the  State,  on  request 
of  the  State  Engineer,  to  furnish  to  him  a  statement  of  the 
amount  and  source  of  the  municipal  water  supply,  with  prob- 
able increase  or  extension  of  the  same ;  provided,  that  this  act 
shall  not  be  deemed  or  held  to  and  shall  not  impair  the  rights 
of  any  person,  association  or  corporation  who  may,  at  and 
prior  to  the  time  this  act  is  filed  in  the  office  of  the  Secretary 
of  State,  have  any  vested  right  to  or  valid  appropriation  or 
bona  fide  notice  of  appropriation  of  the  waters  of  either  the 
Bull  Run  or  the  Little  Sandy  river,  under  laws  heretofore  in 
effect  or  under  any  valid  contract  or  deed  of  conveyance  here- 
tofore made  with  or  by  the  city  of  Portland.  [L.  1909,  c.  216, 
P.  342,  §  71.] 


36  WATER  LAWS  OF  THE  STATE  OF  OREGON 

PART  II. 

GENERAL 

(a)     LICENSE  FEES  FOR  POWER  DEVELOPMENT. 

§  6675.  Water  Belongs  to  Public. 

All  water  within  the  State  from  all  sources  of  water  supply 
belong  to  the  public.  [L.  1909,  c.  -221,  p.  370,  §  1.] 

See  notes  to  §§  6594,  6624,  post. 

§  6576.  Annual  Charge  for  Water  Power. 

Every  person,  firm,  or  corporation  except  municipal  cor- 
porations (hereinafter  called  the  appropriator) ,  who  shall 
appropriate  water  after  the  passage  of  this  act,  for  the  pur- 
pose of  applying  the  same  to  the  development  of  power,  shall 
during  the  life  of  such  appropriation  as  fixed  herein  pay  to 
the  State  of  Oregon  not  less  than  twenty-five  cents  or  more 
than  $2.00  per  annum  in  advance,  on  or  before  the  second 
day  of  January  of  each  year,  for  each  and  every  horsepower 
represented  by  the  said  appropriation.  The  amount  of  the 
payment  shall  be  determined  by  the  Board  of  Control  and 
adjusted  from  time  to  time,  based  upon  the  percentage  of 
power  appropriated  which  is  put  to  beneficial  use.  For  the 
purpose  of  this  act,  a  horsepower  is  hereby  defined  to  be  550 
pounds  of  water  per  second  of  time  for  each  foot  of  available 
fall.  [L.  1909,  c.  221,  p.  370,  §  2.] 

§  6577.  Payment,  How  and  to  Whom  Made. 

The  appropriator  shall  pay  to  the  Board  of  Control  the  fees 
required  by  Section  6576,  proportionate  to  the  remainder  of 
the  current  year,  and  no  appropriation  of  water  for  power 
purposes  shall  be  deemed  complete  until  such  payment  of  fees 
is  made.  Immediately  upon  the  receipt  of  such  fees  the  Board 
of  Control  shall  pay  them  over  to  the  State  Treasurer,  taking 
his  receipt  therefor,  who  shall  place  the  same  in  the  general 
fund  of  the  State  treasury.  On  or  before  the  second  day  of 
January  of  each  year  thereafter,  every  appropriator  of  water 
for  power  purposes  shall  forward  to  the  Board  of  Control  the 
fees  provided  for  in  Section  6576.  [L.  1909,  c.  221,  p.  370,  §  3.] 

§  6578.  Term— Forfeiture. 

Upon  the  completion  of  the  appropriation  of  water  for 
power  purposes,  as  now  or  hereafter  provided  by  law,  and 
compliance  with  the  provisions  of  this  act,  the  appropriator 
thereof  shall  own  and  enjoy  all  of  the  uses  thereof  so  long 
as  he  pays  the  annual  fees  therefor,  herein  required,  for  a 
term  not  exceeding  forty  years  from  the  date  of  appropriation 


WATER  LAWS  OP  THE  STATE  OF  OREGON  37 

and  shall  have  a  preference  right  to  re-appropriate  such  water 
under  such  conditions  as  may  be  prescribed  by  law  at  the 
expiration  of  such  term  of  years,  provided  all  fees  have  been 
paid.  If  any  appropriator  shall  fail  to  pay  any  annual  fee,  or 
shall  fail  or  refuse  to  renew  the  appropriation  at  its  expira- 
tion, the  State  shall  have  a  preference  lien  therefor  prior  to 
all  other  liens  or  claims,  except  for  taxes,  upon  the  improve- 
ments of  the  appropriator  for  developing  and  applying  such 
appropriation  of  water  and  the  real  estate  upon  which  the 
same  are  located,  and  upon  notice  from  the  Board  of  Control, 
the  Attorney  General  shall  proceed  to  foreclose  the  lien  and 
collect  any  unpaid  fees  in  the  same  manner  as  other  liens  on 
real  property  are  foreclosed,  and  the  water  shall  be  again 
subject  to  appropriation.  [L.  1909,  c.  221,  p.  371,  §  4.] 

§  6579.  Appeal  by  User  From  Decision  of  Board  of  Control. 

Any  person,  firm  or  corporation  who  believes  himself  or 
itself  injured  in  any  material  right  by  any  decision  of  the 
Board  of  Control  shall  have  the  right  of  appeal  from  such 
decision  to  the  circuit  court  for  the  county  in  which  the  pro- 
posed appropriation  of  water  is  situated.  [L.  1909,  c.  221, 
p.  371,  §  5.] 

Power  Appropriations  Initiated  Prior  to  May  22,  1909. 

Section  1.  Every  person,  firm,  corporation  or  association 
hereinafter  called  ''claimant,"  claiming  the  right  to  the  use  of 
water  for  power  development  where  said  water  was  applied  to 
the  development  or  generation  of  power,  and  the  power  gener- 
ated thereby  prior  to  the  22nd  day  of  May,  1909,  shall  on  or 
before  the  1st  day  of  January,  1912,  and  on  or  before  the  1st 
day  of  January  of  each  year  thereafter,  pay  to  the  State  of 
Oregon  in  advance  an  annual  license  fee  based  upon  the 
theoretical  water  horsepower  claimed  under  each  and  every 
separate  claim  to  water,  graduated  as  follows,  to-wit:  Ten 
cents  for  each  and  every  theoretical  water  horsepower  up  to 
100,  inclusive ;  five  cents  for  each  and  every  theoretical  water 
horsepower  in  excess  of  100  and  up  to  and  including  1,000; 
and  one  cent  for  each  and  every  theoretical  water  horsepower 
in  excess,  of  1,000 ;  provided,  however,  upon  filing  the  statement 
as  hereinafter  provided,  the  United  States,  or  the  State,  or  any 
municipal  corporation,  claiming  the  right  to  the  use  of  water 
to  any  extent  for  the  generation  of  power,  or  any  other  claim- 
ant to  the  right  to  use  water  for  the  generation  of  25  theoretical 
water  horsepower,  or  less,  shall  be  exempted  from  the  payment 
of  all  fees  herein  provided. 

Section  2.  The  fees  herein  provided  shall  be  paid  to  the 
State  Engineer  in  advance,  and  shall  be  accompanied  by  a 


Sig. 


38  WATER  LAWS  OF  THE  STATE  OP  OREGON 


written  statement  showing  the  extent  of  such  claim.  Said 
statement  shall  set  forth  the  name  and  address  of  the  claimant ; 
the  name  of  the  stream  from  which  the  water  is  appropriated 
or  claimed  for  power  development;  a  description  of  the  forty 
acres,  or  smallest  legal  subdivision  in  which  the  point  of  diver- 
sion and  point  of  return  are  located ;  the  date  of  the  right  as 
claimed ;  the  maximum  amount  of  water  claimed  expressed  in 
cubic  feet  per  second  of  time;  the  total  average  fall  utilized 
under  such  claim;  the  manner  of -developing  power,  and  the 
use  to  which  the  power  is  applied.  If  the  regular  flow  is  sup- 
plemented by  water  stored  in  a  reservoir,  the  location  of  such 
reservoir,  its  capacity  in  acre-feet  and  the  stream  from  which 
it  is  filled  and  fed,  should  be  given,  also  the  date  of  the  right  as 
claimed,  for  storage  purposes. 

Should  any  claimant  fail  or  neglect  to  file  such  statement 
within  the  time  specified,  or  fail  or  neglect  to  pay  such  fees 
within  the  time  specified,  the  fees  due  and  payable  shall  be  the 
amount  specified  in  Section  1  of  this  act  increased  twenty-five 
per  cent,  and  the  State  shall  have  a  preference  lien  therefor, 
together  with  interest  at  the  rate  of  ten  per  cent  per  annum 
from  date  of  delinquency,  upon  the  property  of  the  claimant 
used,  or  necessary  for  use,  in  the  development  of  the  right  or 
claim,  together  with  any  improvements  erected  thereon  for 
such  development,  and  upon  notice  from  the  State  Engineer, 
the  Attorney  General  shall  proceed  to  foreclose  the  lien  and 
collect  the  amount  due,  as  herein  provided,  in  the  same  manner 
as  other  liens  on  real  property  are  foreclosed. 

Section  3.  The  filing  of  a  claim  to  water  in  excess  of  the 
amount  to  which  the  claimant  is  legally  entitled  shall  not 
operate  to  vest  in  such  claimant  any  right  to  the  use  of  such 
excess  water,  nor  shall  the  payment  of  the  annual  license  fees, 
provided  for  herein,  operate  to  vest  in  any  claimant  any  right 
to  the  use  of  such  water  beyond  the  amount  to  which  claimant 
is  legally  entitled.  The  filing  of  any  such  claim  to  water  shall 
be  conclusive  evidence  as  to  the  abandonment  by  the  claimant 
of  all  rights  to  water  for  power  purposes  in  excess  of  the  claim 
as  filed. 

Section  4.  The  amount  of  theoretical  water  horsepower 
upon  which  fees  shall  be  paid  under  the  provisions  of  this  act 
shall  be  computed  by  multiplying  the  maximum  amount  of 
water  claimed,  expressed  in  cubic  feet  per  second,  by  the 
average  total  fall  utilized,  expressed  in  feet,  and  dividing  the 
product  by  8.8.  [L.  1911,  c.  236,  p.  418.] 
§  6551.  Use  of  Water  for  Mining  and  Electrical  Power  a  Public  One. 

The  use  of  the  water  of  the  lakes  and  running  streams  of 
the  State  of  Oregon  for  the  purpose  of  developing  the  mineral 


WATER  LAWS  OP  THE  STATE  OP  OREGON 


39 


resources  of  the  State  and  to  furnish  electrical  power  for  all 
purposes',  is  declared  to  be  a  public  beneficial  use  and  a  public 
necessity,  and  the  right  to  divert  unappropriated  waters  of  any 
such  lakes  or  streams  for  such  public  and  beneficial  use  is  here- 
by granted;  provided,  that  the  provisions  of  this  act  do  not 
apply  or  extend  to  that  certain  stream  situated  in  Multnomah 
County,  Oregon,  known  as  Multnomah  Creek,  and  sometimes 
called  Coon  Creek,  which  stream  forms  Multnomah  Falls,  but 
said  stream  and  the.  flow  of  water  therein  shall  not  be  diverted 
or  interrupted  for  any  purposes  whatsoever.  [L.  1899,  p.  172, 
§  1 ;  B.  &  C.  §  5022 ;  L.  1907,  c.  145,  p.  288.] 


See  notes  to  §§  6594,  6624. 

This  section  and  §  6552,  authorize 
corporations  engaged  in  furnishing 
electrical  power  for  all  purposes  to  use 
the  surplus  water  of  the  streams  of 
the  State  for  water  power,  and  to  con- 
demn the  rights  of  riparian  proprietors 
and  also  rights  of  way  for  ditches. 
Section  6555  declares  that  when  the 
point  of  diversion  shall  have  been  se- 
lected the  appropriator  snail  post  a 
certain  notice  thereat,  and  §  6556  re- 
quires the  filing  for  record  within  ten 
days  thereafter  of  a  similar  notice,  and 
a  map  showing  the  general  route  of  the 
ditch.  Section  6557  provides  that  when 
such  corporation  shall  have  acquired 
the  right  to  appropriate  water  in  the 
manner  provided,  it  may  condemn  lands 
necessary  for  the  right  of  way  for  its 
ditch ;  and  it  was  held  that  where  a 
corporation  organized  for  furnishing 
electrical  power  for  all  purposes  has 
selected  a  point  for  the  diversion  of  the 
water  of  a  stream,  and  has  surveyed 
and  located  the  line  of  its  ditch,  and 
has  posted  the  required  notice,  and 
filed  the  notice  and  map,  its  right  to 
appropriate  the  water  is  thereby  ac- 
quired, j.  uereafter  the  corporation  may 
maintain  an  action  of  condemnation 
without  showing  that  it  is  the  sole 
owner  of  the  banks  of  the  stream  in 
question  from  the  point  of  the  proposed 
diversion  to  the  mouth  thereof,  or  that 
it  has  secured  from  the  riparian  pro- 
prietors below  the  proposed  point  of 
diversion  the  right  to  divert  the  sur- 
plus water  in  such  stream :  Grande 
Ronde  Elec.  Co.  v.  Drake,  46  Or.  243, 
78  Pac.  1031. 

The  provision  in  §  18,  Art.  1,  Const. 
Or.,  that  private  property  shall  not  be 
taken  for  public  use  without  just  com- 
pensation first  assessed  and  tendered, 
impliedly  prohibits  the  taking  of  pri- 
vate property  for  private  use,  even 
thoug-  just  compensation  be  made 
therefor :  Grande  Ronde  Elec.  Co.  V. 
Drake,  supra. 

The  necessity  of  exercising  the  right 
of  eminent  domain  in  general  classes 
of  cases  is  a  legislative  question,  but 
whether  the  use  in  a  particular  in- 
stance is  public  or  private,  an,  the 


extent  of  the  use  necessary,  are  to 
be  determined  by  the  courts  as  ques- 
tions of  fact ;  for  example,  the  legis- 
lature may  determine  that  corporations 
^furnishing  electricity  for  sale  shall  be 
allowed  to  condemn  private  property 
for  their  use,  yet  as  to  the  nature  of 
the  use  to  which  a  particular  piece  of 
property  is  to  be  put  and  the  extent 
of  the  needs  of  the  condemner,  there 
may  be  a  question,  which  the  courts 
must  decide  :  Grande  Ronae  Elec.  Co. 
v.  Drake,  supra. 

Sections  6551-6556  declare  the  use 
of  water  of  the  streams  of  the  State 
for  furnishing  electric  power  for  all 
purposes  a  public  use  and  authorize 
corporations  created  for  such  purpose 
to  use  such  streams  therefor,  so  that 
the  use  may  not  materially  impair  the 
rights  of  prior  appropriators,  on  the 
corporation  complying  with  certain 
prescribed  conditions.  Section  6557 
declares  that  when  such  corporation 
shall  have  acquired  the  right  to  appro- 
priate the  water  "in  the  manner  here- 
inbefore provided  it  may  proceed  to 
condemn  lands  and  premises  neces- 
sary for  right  of  way  for  its  ditch"  ; 
and  §§  6558  and  6559  authorize  such 
corporations,  when  authorized  as  so 
provided,  to  appropriate  water  and 
construct  and  maintain  a  ditch,  to 
maintain  an  action  to  condemn  a  right 
of  way  for  such  ditch,  and  also  for 
the  condemnation  and  appropriation  of 
the  right  to  the  flow  of  the  water  in 
any  stream  from  which  it  is  proposed 
to  divert  water  below  the  point  of 
diversion  vested  in  riparian  propri- 
etors ;  and  it  was  held  that  a  corpora- 
tion, having  so  acquired  the  right  to 
appropriate  water,  may  maintain  an 
action  either  to  condemn  land  for  a 
ditch,  or  to  condemn  the  right  to  have 
the  water  flow  in  the  channel  of  the 
stream  through  the  premises  of  a 
riparian  proprietor,  or  it  may  sue  for 
both  purposes  in  one  action  when  both 
rights  are  vested  in  the  same  defend- 
ant :  Grande  Ronde  Elec.  Co.  v.  Drake, 
supra. 

Also  bearing  on  this  point  as  applies 
to  cities  or  towns,  see  McMinnville  v. 
Howenstine,  56  Or.  451,  109  Pac.  81. 


40  WATER  LAWS  OP  THE  STATE  OF  OREGON 


(6)     CONDEMNATION — RIGHTS  OF  WAY— EMINENT  DOMAIN. 
§  6596.  Eminent  Domain. 

Section  1.  The  United  States,  the  State,  or  any  person,  firm 
or  corporation,  shall  have  the  right  of  way  across  and  upon 
public,  private  and  corporate  lands  or  other  rights  of  way, 
for  the  construction,  maintenance,  repair  and  use  of  all  neces- 
sary reservoirs,  dams,  water  gates,  canals,  ditches,  flumes, 
tunnels  or  others  means  of  securing,  storing  and  conveying 
water  for  irrigation  or  for  drainage,  or  any  other  beneficial 
purpose,  upon  payment  of  just  compensation  therefor.  But 
such  right  of  way  shall  in  all  cases  be  so  constructed,  obtained, 
located  and  exercised  in  a  manner  consistent  with  proper  and 
economical  engineering  construction,  so  as  not  to  unnecessarily 
impair  practical  use  of  any  other  right  of  way,  highway,  or 
public  or  private  road,  nor  to  unnecessarily  injure  any  public 
or  private  property.  Such  right  may  be  acquired  in  the  manner 
provided  by  law  for  the  taking  of  private  property  for  public 
use. 

Section  2.  When  the  United  States,  the  State,  or  any  per- 
son, firm  or  corporation  desires  to  convey  water  for  irrigation, 
drainage  or  for  any  other  beneficial  purpose,  and  there  is  a 
canal  or  ditch  already  constructed  that  can  be  enlarged  to 
convey  the  required  quantity  of  water,  then  the  United  States, 
the  State,  or  any  such  person,  firm  or  corporation,  or  the  owner 
or  owners  of  the  land  through  which  a  new  canal  or  ditch 
would  have  to  be  constructed  to  convey  the  quantity  of  water 
necessary,  shall  have  the  right  to  enlarge  said  canal  or  ditch 
already  constructed,  by  compensating  the  owner  of  the  canal 
or  ditch  to  be  enlarged  for  the  damages,  if  any,  caused  by  said 
enlargement;  provided,  that  said  enlargement  may  be  made  at 
any  time  between  the  1st  day  of  October  and  the  1st  day  of 
March,  but  not  any  other  time,  unless  upon  agreement  in  writ- 
ing with  the  owner  or  owners  of  said  canal  or  ditch.  [L.  1911, 
c.  238,  p.  421.] 

§  3302.  Municipality  of  Adjoining  State  May  Condemn  Lands  to  Pro- 
tect Water  Supply. 

That  any  municipal  corporation  of  any  state  adjoining  the 
State  of  Oregon  may  acquire  title  to  any  land  or  water  right 
within  the  State  of  Oregon,  by  purchase  or  condemnation, 
which  lies  within  any  watershed  from  which  said  municipal 
(corporation)  obtains  or  desires  to  obtain  its  water  supply. 
[L.  1909,  c.  182,  p.  256,  §  1.] 

Municipal  Water  Systems — Eminent  Domain. 

Incorporated  cities  and  towns  having  a  population  of  over 


WATER  LAWS  OP  THE  STATE  OF  OREGON  41 

3,000,  when  the  power  to  do  so  is  conferred  by  or  contained 
in  their  charter  or  act  of  incorporation,  are  hereby  authorized 
to  build,  own,  operate  and  maintain  water  works,  water  sys- 
tems, railways  and  railroads,  electric  light  and  power  plants, 
within  and  without  the  boundaries  of  said  corporation,  for 
the  benefit  and  use  of  the  inhabitants  thereof,  and  for  profit, 
and  to  that  end  may  in  connection  with  their  water  systems 
sell  and  dispose  of  water  for  irrigation  and  other  purposes  to 
people  residing  without  the  boundaries  of  such  municipal  cor- 
poration, and  may  build,  acquire,  own  and  operate  railways 
operated  by  steam,  electric  or  other  power  within  and  without 
the  boundaries  of  such  municipal  corporation  and  running 
from  said  municipal  corporation  to  other  towns,  cities  and 
points  without  the  boundaries  of  the  municipal  corporation, 
and  to  that  end  may  acquire  rights  of  way,  easements,  real 
property  within  and  without  its  boundaries,  for  any  of  such 
purposes.  For  the  purpose  of  exercising  such  powers,  such 
cities  and  towns  are  conferred  with  the  power  and  authority 
to  bring  actions  for  the  condemnation  or  taking  of  private 
property  for  public  use  in  the  same  manner  as  private  corpo- 
rations are  now  authorized  or  permitted  to  do  under  the  laws 
of  this  State.  [L.  1913,  c.  283,  p.  541.] 

§  6527.  Right  to  Enter  on  Land  to  Survey  and  Locate  Line. 

Any  person,  firm  or  corporation  may  enter  upon  any  land 
for  the  purpose  of  locating  a  point  of  diversion  of  the  water 
intended  to  be  appropriated  and  upon  any  land  lying  between 
such  point  and  the  lower  terminus'  of  its  proposed  ditch  or 
canal  or  flume,  for  the  purpose  of  examining  the  same  and  of 
locating  and  surveying  the  line  of  such  ditch  or  canal  or  flume, 
together  with  the  lines  of  necessary  distributing  ditches  and 
feeders,  and  to  locate  and  determine  the  site  for  reservoirs  for 
storing  water.  [L.  1891,  p.  53,  §  3 ;  L.  1913,  c.  86,  p.  138,  §  1.] 

§  6638.  Corporations  May  Go  on  Land  to  Survey  Line. 

A  corporation  organized  for  the  construction  of  any  rail- 
way, macadamized  road,  plank  road,  clay  road,  canal,  bridge,  or 
of  any  ditch  or  flume  for  the  conducting  of  water  for  irrigation 
or  domestic  purposes,  or  for  the  purpose  of  selling  the  same  to 
the  public  for  general  purposes  for  public  use,  or  for  conduct- 
ing water  by  means  of  pipe  laid  upon  or  under  the  surface  ^of 
the  ground ;  or  for  the  manufacture,  use,  or  sale  of  electricity 
for  lighting  or  power  purposes,  or  desiring  to  use  such  electri- 
cal power  in  the  operation  of  any  railway,  shall  have  a  right  to 
enter  upon  any  land  between  the  termini  thereof,  or  elsewhere, 
for  the  purpose  of  examining,  locating,  or  surveying  the  line 
of  such  railway,  macadamized  road,  plank  road,  clay  road, 


42  WATER  LAWS  OP  THE  STATE  OF  OREGON 

canal,  bridge,  ditch,  flume,  or  pipe  line,  for  the  purpose  of  sur- 
veying or  measuring  any  lands  or  rights  appurtenant  thereto 
needed  for  railway,  power,  or  other  such  purposes,  doing  no 
unnecessary  damage  thereby.  [L.  1862 ;  L.  1870,  p.  26,  §  1 ; 
L.  1907,  c.  147,  p.  289;  L.  1909,  c.  75,  p.  133,  §  2.] 

The  right  of  eminent  domain  is  one  that  can  be  exercised  only  by  legislative 
authority,  and  for  a  use  beneficial  to  the  public,  and  whether  a  proposed  use  is  a 
public  one  is  for  the  courts  to  determine  as  a  question  of  fact :  Bridal  Veil  Lum. 
Co.  v.  Johnson,  30  Or.  210,  46  Pac.  790. 

§  6639.  Land  May  Be  Appropriated,  to  What  Extent  and  for  What 
Purposes. 

Any  corporation  mentioned  in  Section  6838  may  appropri- 
ate so  much  of  said  land  as  may  be  necessary  for  the  line  of 
such  railway,  macadamized  road,  plank  road,  clay  road,  canal, 
bridge,  ditch,  flume  or  pipe  line,  not  exceeding  two  hundred  feet 
in  width,  besides  a  sufficient  quantity  thereof  for  toolhouses, 
workshops,  materials  for  construction,  timber  excepted,  a  right 
through  such  adjacent  land  to  enable  such  corporation  to  con- 
struct and  repair  its  railway,  macadamized  road,  plank  road, 
clay  road,  canal,  bridge,  ditch,  flume,  or  pipe  line,  and  to  make 
proper  drains;  and  any  corporation  organized  in  whole  or  in 
part  for  the  construction  of  a  canal  for  navigating  or  manufac- 
turing purposes  or  of  any  ditch  or  flume  for  the  purpose  of 
conveying  water  for  irrigating,  domestic,  or  stock  purposes 
may  appropriate  such  waterways,  water  rights  or  privileges, 
or  otherwise  acquire  by  purchase,  lease,  or  otherwise,  estab- 
lished water  rights  or  privileges,  or  those  initiated  by  perform- 
ing any  acts  herein  or  otherwise  required,  provided,  or  permit- 
ted by  law,  as  may  be  necessary  or  convenient  for  the  purpose 
of  supplying,  operating,  constructing  or  maintaining  the  same ; 
and  in  case  of  railway,  sufficient  quantity  of  such  land,  in  addi- 
tion to  that  above  specified  in  this  section,  for  the  necessary 
sidetracks',  spur  tracks,  and  laterals  reasonably  necessary  for 
manufacturing  establishments,  also  for  depot  and  water  sta- 
tions, cuttings,  and  embankments,  and  for  the  proper  construc- 
tion, security,  and  convenient  operation  of  its  road;  and  such 
railway  company  shall  have  the  right  to  cut  down  any  stand- 
ing timber  in  danger  of  falling  upon  its  road,  making  compen- 
sation therefor  as  provided  in  this  act,  for  lands  taken  for  the 
use  of  the  corporation,  and  shall  have  the  right,  and  may  appro- 
priate the  right,  to  conduct  water  thereto  by  aqueducts;  and 
any  such  railway  corporation  may  cross,  intersect,  join,  and 
unite  its  railway  with  any  other  railways  at  any  point  in  its 
route,  and  upon  the  grounds  of  such  other  railway  corporation, 
and  make  the  necessary  turnouts,  sidings,  switches,  and  other 
conveniences  in  furtherance  of  the  object  of  its  connection  and 
may  appropriate  to  make  such  crossings ;  the  railway  which  is 


WATER  LAWS  OP  THE  STATE  OF  OREGON  43 

or  may  be  intersected  by  new  railways,  may  unite  with  the 
owners  of  such  new  railways  in  forming  such  intersection  and 
connection,  and  grant  the  facilities  aforesaid;  but  in  case  of 
water  pipes,  except  in  incorporated  towns  and  cities,  the  corpo- 
ration may,  so  far  as  may  be  necessary  for  the  laying  and  keep- 
ing in  repair  its  water  pipes,  appropriate  the  use  of  so  much  of 
such  lands  as  may  be  necessary,  and  may  make  whatever  cuts1 
and  excavation  (or  cuts)  as  soon  as  practicable  after  making 
the  same,  but  no  appropriation  of  private  property  shall  be 
made  until  compensation  be  made  therefor  to  the  owner 
thereof,  irrespective  of  any  increased  value  thereof,  by  reason 
of  the  proposed  improvement  by  such  corporation,  in  the  man- 
ner hereinafter  provided.  And  any  such  corporation  men- 
tioned in  Section  6838  may  also  appropriate  and  condemn  the 
rights  of  riparian  proprietors  in  any  lake  or  stream,  to  enable 
such  corporation  to  develop,  manufacture,  or  furnish  electrical 
energy  for  lighting  or  power  purposes,  for  the  operation  of  any 
railway  in  this  State,  or  to  manufacture,  furnish,  or  sell  elec- 
trical energy  for  lighting  or  power  purposes  to  any  city  or  town 
in  this  State,  or  to  any  public  service  corporation  doing  business 
therein;  and  any  such  corporation  mentioned  in  said  Section 
6838  shall  have  the  right  to  condemn  lands  for  the  sites  of 
reservoirs  for  storing  water  for  future  use,  and  for  rights  of 
way  for  feeders,  carrying  water  to  such  reservoirs,  and  for 
ditches,  canals,  flumes,  or  pipe  lines  carrying  the  same,  away, 
and  such  right  of  condemnation  shall  be  exercised  in  the  same 
manner  as  property  is  now  condemned  and  appropriated  for 
railway  purposes.  [L.  1862 ;  L.  1870,  p.  26,  §  2 ;  L.  1878,  p. 
104,  §  1;  L.  1885,  p.  107,  §  1 ;  L.  1907,  c.  147,  p.  289;  L.  1909, 
c.  75,  p.  133,  §  3.] 

§  6840.  Corporation  May  Change  Location,  Etc.,  of  Road. 

Any  corporation  may  change  the  grade  or  location  of  its 
road,  canal,  or  pipes,  not  departing  from  the  general  route 
specified  in  the  articles  of  incorporation,  for  the  purpose  of 
avoiding  annoyances  to  public  travel  or  dangerous  or  deficient 
curves  or  grades,  or  unsafe  or  unsubstantial  grounds  for  foun- 
dation, or  for  other  like  reasonable  causes,  and  for  the  accom- 
plishment of  such  change  shall  have  the  same  right  to  enter 
upon,  examine,  survey,  and  appropriate  the  necessary  lands 
and  materials  as  in  the  original  location  and  construction  of 
such  road,  canal,  or  water  pipes.  [L.  1862 ;  L.  1870,  p.  27,  §  3.] 

§  6857.  Mining  and  Other  Private  Corporations  May  Condemn  Land. 

Any  corporation  organized  for  the  purpose  of  opening  or 
operating  any  gold,  silver,  or  copper  vein  or  lode,  or  any  coal  or 
other  mine ;  or  any  marble,  stone,  or  other  quarry,  or  for  cut- 


44  WATER  LAWS  OP  THE  STATE  OP  OREGON 

ting  or  transporting  timber,  lumber,  or  cord  wood,  or  for  the 
manufacture  of  lumber,  shall  have  the  right  to  construct  and 
operate  railroads,  skid  roads,  tramways,  chutes,  and  flumes 
between  such  points  as  may  be  indicated  in  their  articles  of 
incorporation,  and  shall  have  a  right  to  enter  upon  any  land 
between  such  points  for  the  purpose  of  examining,  locating, 
and  surveying  the  line  of  such  railroads,  skid  roads,  tramways, 
chutes,  and  flumes,  doing  no  unnecessary  damage  thereby,  and 
such  corporations  shall  have  power  to  appropriate  so  much  of 
said  land  as  may  be  necessary  for  the  same,  not  exceeding 
sixty  feet  in  width,  and  may  maintain  an  action  for  the  appro- 
priation thereof  in  the  manner  and  form  as  by  law  provided  by 
any  railway,  macadamized  road,  plank  road,  clay  road,  canal, 
or  bridge,  and  with  like  effect.  [L.  1895,  p.  6,  §  1.] 

§  6858.  Private  Corporations  Deemed  for  Public  Benefit. 

Any  such  railroads,  skid  roads,  tramways,  chutes,  flumes, 
shall  be  deemed  to  be  for  public  benefit,  and  any  such  railroad 
so  constructed  and  operated  shall  afford  to  all  persons  equal 
facilities  for  the  transportation  of  freight  upon  payment  or 
tender  of  reasonable  compensation  therefor,  but  said  railway 
shall  not  be  required  to  carry  passengers,  and  any  such  skid- 
way,  tramway,  chute  or  flume  shall  afford  to  all  persons  equal 
facilities  in  the  use  thereof  for  the  purpose  to  which  they  are 
adapted,  upon  tender  or  payment  of  the  reasonable  compensa- 
tion for  such  use.  [L.  1895,  p.  6,  §  2 ;  L.  1907,  c.  147,  p.  290, 
§3.] 

§  6871.  Private  Property  May  Be  Appropriated  to  Public  Use. 

Whenever  the  law  authorizes  private  real  property  to  be 
appropriated  to  public  use,  the  same  may  be  entered  upon, 
examined,  surveyed,  and  selected  in  the  mode  prescribed  by  the 
statute  giving  such  authority,  and  thereafter  the  State,  county, 
or  other  municipal  or  public  corporation  therein,  seeking  and 
authorized  to  make  such  appropriation,  may  proceed  in  the 
mode  in  this  title  prescribed,  to  have  such  property  appropri- 
ated and  the  compensation  therefor  determined  and  paid,  and 
not  otherwise ;  except  that  the  compensation  in  the  case  of  such 
State,  county,  municipal,  or  public  corporation  is  paid  by  the 
deposit  in  court  of  an  order  duly  drawn  upon  the  treasurer 
thereof  for  the  amount  of  such  compensation.  [L.  1862.] 

§  6872.  Condemnation  of  Land,  Water  Rights,  Etc.,  for  Use  of  State- 
Proceedings. 

Whenever  it  is  necessary  that  the  State  of  Oregon  shall 
require  any  real  property,  water,  water  courses,  and  water  and 
riparian  rights,  or  any  right  or  interest  therein,  for  any  public 


WATER  LAWS  OF  THE  STATE  OP  OREGON  45 

use,  the  necessity  for  such  acquisition  to  be  decided  and  de- 
clared in  the  first  instances  by  the  State  board  of  commission- 
ers, trustees,  or  other  State  board  having  direction  of  the  State 
institution  or  department  for  which  the  real  property,  water, 
water  courses,  or  water  and  riparian  rights  or  interest  therein 
is  desired,  or  by  the  State  Land  Board,  if  there  be  no  State 
board  for  the  department  or  institution  for  which  the  same  is 
sought  to  be  acquired,  if  the  owner  thereof  and  said  board 
having  direction  of  the  State  institution  or  department  for 
which  the  same  is  sought  to  be  acquired,  or  the  State  Land 
Board  if  there  be  no  such  other  board,  cannot  agree  upon  the 
price  to  be  paid  for  the  amount  of,  or  interest  in  his  said  real 
property,  water,  water  courses,  or  water  and  riparian  rights 
required  for  such  public  use,  and  the  damages  for  the  taking 
thereof,  said  board  of  commissioners,  trustees,  or  other  State 
board,  or  State  Land  Board,  may  and  is  hereby  authorized  to 
request  the  Attorney  General  to,  and  he  shall  when  so  requested, 
commence  and  prosecute  in  any  court  of  competent  jurisdiction, 
in  the  name  of  the  State  of  Oregon,  any  necessary  or  appropri- 
ate suit,  action  or  proceeding  for  the  condemnation  of  said 
amount  of  or  interest  in  said  real  property,  water,  water 
courses,  water  and  riparian  rights  so  required  for  said  pur- 
poses, and  for  the  assessment  of  the  damages  for  the  taking 
thereof;  and  the  district  attorney  of  the  judicial  district  in 
which  the  property  to  be  condemned  lies  shall,  when  requested 
by  any  of  said  boards  or  officers,  commence  and  prosecute  any 
such  suit,  action  or  proceeding  in  the  circuit  court  of  such  dis- 
trict, or  aid  the  Attorney  General  in  so  doing  in  any  manner 
requested  by  him.  The  procedure  in  said  suit,  action  or  pro- 
ceeding shall  be,  as  far  as  applicable,  the  procedure  provided 
for  in  and  by  the  laws  of  this  State  for  the  condemnation  of 
land  or  rights  of  way  by  public  corporations  or  quasi  public 
corporations  for  public  use  or  for  corporate  purposes ;  provided 
nothing  in  this  act  shall  be  construed  to  require  the  State  of 
Oregon  to  make  or  tender  compensation  prior  to  condemning 
and  taking  possession  of  such  lands  or  property.  [L.  1905,  c. 
45,  p.  106,  §  1.] 

§  6873.  Expense  of  Proceedings  and  Value  of  Property,  How  Paid. 

The  expenses  of  such  condemnation  proceedings  and  the 
value  of  the  real  property,  water,  water  courses,  and  water  and 
riparian  rights  or  interest  therein,  and  the  damages  for  the 
taking  thereof,  shall  be  paid  out  of  the  funds  provided  for  the 
department  or  institution  for  which  the  real  property,  water, 
water  courses,  and  water  and  riparian  rights  or  interest  therein 
are  so  acquired,  in  the  same  manner  as  other  expenses  for  like 
purposes  of  such  department  or  institution  are  paid,  and  if  no 


46  WATER  LAWS  OF  THE  STATE  OF  OREGON 

funds  have  been  provided  out  of  which  the  same  can  be  paid, 
payment  shall  be  made  out  of  any  funds  in  the  treasury  not 
otherwise  appropriated,  and  the  Secretary  of  State  is  hereby 
authorized  to  draw  his  warrant  on  the  Treasurer  therefor.  [L. 
1905,  c.  45,  p.  107,  §  2] 


By  an  act  of  the  Legislative  Assembly  of  the  State  of  Ore- 
gon, filed  in  the  office  of  the  Secretary  of  State  February  18, 
1911,  Section  6874  of  Lord's  Oregon  Laws  was  amended  to 
read  as  follows : 

Section  6874.  Any  incorporated  city  or  town  of  this  State, 
or  the  proper  department,  board  or  commission  of  any  such 
city  or  town  shall  have  the  right  to  appropriate:  (1)  Any 
private  real  property,  water,  water  courses,  and  water  and 
riparian  rights  to  any  public  or  municipal  use  or  uses,  or  for 
the  general  use  and  benefit  of  the  people  of  said  city  or  town, 
or  to  protect  said  city  or  town  from  overflow  by  freshets; 
(2)  any  real  property  of  any  private  corporation  or  private 
person  devoted  to  a  public  use,  for  the  purpose  of  any  public 
or  municipal  dock,  wharf,  pier,  slip,  basin,  or  other  structure 
of  a  like  kind. 

Any  such  property  or  rights  may  be  entered  upon,  surveyed, 
examined  and  selected  for  the  purpose  of  laying  out,  estab- 
lishing or  constructing  any  ditch,  drain,  dike,  canal,  flume, 
sewer,  reservoir,  septic  tank,  filter  bed,  sewer  farm  [form]  or 
purifying  plant,  dock,  wharf,  pier,  slip,  basin,  or  other  similar 
structure  for  municipal  purposes,  in  the  mode  described  by  this 
chapter  and  the  statutes  of  this  State  for  the  appropriation 
of  land  for  corporate  purposes;  and  such  appropriation  may 
extend  beyond  the  corporate  limits  of  said  city  or  town,  to 
or  along  and  including  any  adjacent  or  neighboring  lake,  river, 
slough,  water  course,  spring,  stream  or  site;  and  after  the 
selection  of  such  rights  and  property  in  such  manner  as  the 
council  or  the  department,  board  or  commission  having  juris- 
diction in  the  premises  may  provide,  the  city  or  town  or  proper 
department,  board  or  commission  of  any  such  city  or  town, 
seeking  to  make  such  appropriation  may  proceed  in  the  man- 
ner prescribed  in  this  act  to  have  such  property  appropriated, 
and  the  compensation  therefor  determined  and  paid  and  not 
otherwise,  except  that  the  compensation  in  case  of  any  such 
city  or  town  is  to  be  paid  by  such  city  or  town,  or  the  proper 
department,  board  or  commission  of  any  such  city  or  town  by 
a  deposit  in  court  of  any  order  duly  drawn  upon  the  treasurer 
thereof  for  the  amount  of  such  compensation.  [L.  1887,  p  91, 
§  1 ;  L.  1891,  p.  145,  §  1 ;  H.  §  3271 ;  B.  &  C.  §  5108 ;  L.  1905, 
c.  15,  p.  77;  L.  1909,  c.  171,  p.  244;  L.  1911,  c.  104,  p.  148.] 


WATER  LAWS  OP  THE  STATE  OF  OREGON  47 

By  an  act  of  the  Legislative  Assembly  of  the  State  of  Ore- 
gon, filed  in  the  office  of  the  Secretary  of  State,  February  21, 
1911,  Section  6874  of  Lord's  Oregon  Laws  was  amended  to 
read  as  follows : 

Section  6874.  Any  incorporated  city  or  town  of  this  State 
shall  have  the  right  to  appropriate  any  private  real  property, 
water,  water  courses,  and  water  and  riparian  rights  to  any 
public  or  municipal  use  or  uses,  or  for  the  general  use  and 
benefit  of  the  people  of  said  city  or  town,  or  to  protect  said 
city  or  town  from  overflow  by  freshets,  and  any  such  prop- 
erty or  rights  may  be  entered  upon,  surveyed,  examined  and 
selected  for  the  purpose  of  constructing  any  ditch,  drain, 
dike,  canal,  flume,  sewer,  reservoir,  septic  tank,  filter  bed, 
sewer  form  or  purifying  plant,  or  laying  or  constructing  and 
maintaining  any  pipe,  sewer,  drain,  aqueduct,  dike,  canal, 
flume,  reservoir,  septic  tank,  filter  bed,  sewer  form,  or  puri- 
fying plant,  or  other  plant,  building  or  system  for  municipal 
uses,  in  the  mode  prescribed  by  this  chapter  and  the  statutes 
of  this  State  for  the  appropriation  of  land  for  corporate  pur- 
poses; and  such  appropriation  may  extend  beyond  the  cor- 
porate limits  of  said  town  or  city  to  or  along  and  including 
any  adjacent  or  neighboring  lake,  spring,  stream,  or  site, 
and  after  the  selection  of  such  rights  and  property  in  such 
manner  as  the  council  may  provide,  the  city  or  town  seeking 
to  make  such  appropriation  may  proceed  in  the  manner  pre- 
scribed in  this  act  to  have  such  property  appropriated,  and  the 
compensation  therefor  determined  and  paid,  and  not  other- 
wise, except  that  the  compensation  in  the  case  of  such  city 
or  town  shall  be  paid  by  a  deposit  in  court  of  an  order  duly 
drawn  upon  the  treasurer  thereof  for  the  amount  of  such 
compensation.  [L.  1887,  p.  91,  §  1 ;  L.  1891,  p.  145,  §  1 ; 
H.  §  3271 ;  B.  &  C.  §  5108 ;  L.  1905,  c.  15,  p.  77 ;  L.  1909,  c.  171, 
p.  244  ;L.  1911,  c.  145,  p.  197.] 


§  3940.  Rights  of  Way  for  Water  Ditches  and  Pipes. 

A  right  of  way  for  the  construction  of  a  water  ditch  to  be 
used  for  irrigation,  manufacturing,  or  mining  purposes,  ditches 
or  water  pipes  for  conveying  water  to  cities  and  towns  for 
domestic  purposes,  or  for  the  extinguishment  of  fires,  is  hereby 
granted  to  any  individuals  or  corporations  who  may  construct 
such  water  ditches  or  water  pipes  over  any  of  the  State  lands 
belonging  to  the  State  of  Oregon — tide,  swamp,  and  overflowed 
lands,  and  school  lands — for  a  distance  on  each  side  of  said 
ditches  or  water  pipes  of  twenty-five  feet.  [L.  1885,  p.  73,  §  2,] 

§  3941.  Copy  of  Notes  of  Survey  of  Ditches,  Etc.,  to  Be  Filed. 

It  shall  be  the  duty  of  said  railroad  corporation  or  water 


48  WATER  LAWS  OP  THE  STATE  OP  OREGON 

company  or  individuals  constructing  said  railroads,  water 
ditches,  or  water  pipes  to  file  a  copy  of  the  field  notes  of  the 
survey  of  such  railroads,  ditches,  or  water  pipes  with  the  Secre- 
tary of  State  of  the  State  of  Oregon,  showing  the  location  of  the 
said  railroad,  water  ditch,  or  water  pipe.  [L.  1885,  p.  73,  §  3.] 

§  3942.  State  Patents  Subject  to  Vested  Water  Ditch  and  Pipe  Line 

Eights. 

All  patents  hereinafter  granted  by  the  State  of  Oregon  for 
any  of  the  class  of  lands  heretofore  mentioned  shall  be  made 
subject  to  any  vested  rights  of  the  owners  of  such  railroads, 
water  ditches  or  water  pipes  as  may  have  been  acquired  under 
the  preceding  sections.  [L.  1885,  p.  73,  §  4.] 

§  6549.  Right  of  Way  Granted  Over  State  Lands. 

The  right  of  way,  to  the  extent  hereinbefore  specified,  for 
the  ditches  or  canals,  flumes,  distributing  ditches,  and  feeders 
of  any  corporation  appropriating  water,  under  the  provisions 
of  this  act,  across  any  and  all  lands  belonging  to  the  State  of 
Oregon  and  not  under  contract  of  sale,  is  hereby  granted. 
[L.  1891,  p.  60,  §  25 ;  B.  &  C.  §  5017.] 

(c)     PUBLIC  USE — LIENS — ABANDONMENT,  ETC. 

§  6525.  What  Use  of  Water  a  Public  One— Right  to  Collect  Rates  a 

Franchise. 

The  use  of  the  water  of  the  lakes  and  running  streams  of  the 
State  of  Oregon,  for  general  rental,  sale  or  distribution,  for 
purposes  of  irrigation,  and  supplying  water  for  household  and 
domestic  consumption,  and  watering  live  stock  upon  dry  lands 
of  the  State,  is  a  public  use,  and  the  right  to  collect  rates  or 
compensation  for  such  use,  of  said  water  is  a  franchise.  A  use 
shall  be  deemed  general  within  the  purview  of  this  act  when 
the  water  appropriated  shall  be  supplied  to  all  persons  whose 
lands  lie  adjacent  to  or  within  reach  of  the  line  of  the  ditch  or 
canal  or  flume  in  which  said  water  is  conveyed,  without  dis- 
criminating other  than  priority  of  contract,  upon  payment  of 
charges  therefor,  as  long  as  there  may  be  water  to  supply; 
provided,  however,  that  no  part  of  this  chapter  shall  apply  to 
Bull  Run  Creek  or  River,  or  the  waters  thereof,  being  in  Clack- 
amas  and  Multnomah  counties,  Oregon,  from  which  river  or 
stream  water  is  supplied  to  the  City  of  Portland.  [L.  1891, 
p.  52,  §  1 ;  B.  &  C.  §  4993 ;  L.  1905,  c.  104,  p.  204.] 

See  notes  to  §§  6594  and  6624.  question    such    a    declaration,    or    pro- 

The  legislature  having,  by  the  terms  nounce    the    law    invalid    on    account 

of  an  act,   made  a  declaration  of  fact  thereof,    unless   it   plainly   violates   the 

which    is    necessary    to    authorize    the  constitution :      Umatilla   Irrigation    Co. 

proposed  legislation,  the  courts  will  not  v.  Barnhart,  22  Or.   391    (30  Pac.   37.) 

Municipal  Water  Systems. 

Section  1.    That  any  incorporated  city  or  town,  within  the 


WATER  LAWS  OP  THE  STATE  OP  OREGON  49 

State  of  Oregon,  owning,  controlling  or  operating  a  system  of 
water  works  or  electric  light  and  power  system  for  supplying 
water  or  electricity  for  its  inhabitants,  and  for  general  munici- 
pal purposes,  and  any  person,  persons,  or  corporation,  controll- 
ing or  operating  any  water  system  or  electric  light  and  power 
system  under  contract,  lease,  or  private  ownership,  shall  have 
the  right,  and  are  hereby  authorized  and  empowered  to  sell, 
supply  and  dispose  of  water  or  electricity  from  such  system  to 
any  person,  persons,  or  corporation  within  or  without  the 
limits  of  such  incorporated  city  or  town  in  which  such  water  or 
electric  light  and  power  system  is  operated,  and  to  make  con- 
tracts in  reference  to  the  sale  and  disposal  of  water  or  electric- 
ity from  such  system,  for  use  within  or  without  the  corporate 
limits. 

Section  2.  All  contracts  or  agreements  heretofore  made, 
and  now  in  effect  for  the  sale  and  disposal  of  water  or  elec- 
tricity by  incorporated  cities  and  towns,  and  by  any  person, 
persons,  or  corporation,  operating,  controlling  or  owning  water 
or  electric  light  and  power  systems,  to  any  person,  persons  or 
corporation  within  or  without  the  limits  of  such  incorporated 
city  or  town,  in  which  such  system  is  operated,  are  hereby  rati- 
fied and  declared  legal  and  valid  contracts,  insofar  as  the 
right  of  such  city  or  town  to  contract  with  reference  to  same  is 
concerned.  [L.  1911,  c.  80,  p.  121.] 

See  Sherred  v.  City  of  Baker,  63  Or.  28. 

Diversion  or  Use  of  Water  May  Be  in  Another  State. 

Section  1.  That  no  permit  for  the  appropriation  of  water 
shall  be  denied  because  of  the  fact  that  the  point  of  diversion 
described  in  the  application  for  such  permit,  or  any  portion 
of  the  works  in  such  application  described  and  to  be  con- 
structed for  the  purpose  of  storing,  conserving,  diverting  or 
distributing  such  water,  or  because  the  place  of  intended  use 
or  the  lands  to  be  irrigated  by  means  of  such  water,  or  any 
part  thereof,  may  be  situated  in  some  other  state,  but  in  all 
such  cases  where  either  the  point  of  diversion  or  any  of  such 
works  or  the  place  of  intended  use,  or  the  land,  or  part  of  the 
lands,  to  be  irrigated  by  means  of  such  water,  are  situated 
within  the  State  of  Oregon,  the  permit  shall  issue  as  in  other 
cases;  provided,  however,  that  the  State  Engineer  may  in  his 
discretion,  decline  to  issue  a  permit  where  the  point  of  diver- 
sion described  in  the  application  is  within  the  State  of  Oregon 
but  the  place  of  beneficial  use  in  some  other  state,  unless 
under  the  laws  of  such  state  water  may  be  lawfully  diverted 
within  such  state  for  beneficial  use  in  the  State  of  Oregon. 
[L.  1911,  c.  224,  p.  404.] 


50  WATER  LAWS  OF  THE  STATE  OP  OREGON 

§  6544.  Lien  on  Crops  for  Water  for  Irrigation. 

Any  person,  firm  or  corporation  who  shall  supply  water  to 
any  person  for  irrigation  of  crops  shall  have  a  lien  upon  all 
crops  raised  by  the  use  of  such  water  for  the  reasonable  value 
of  the  water  supplied,  which  lien  shall  be  a  continuing  one  and 
shall  bind  said  crops  after,  as  well  as  before  the  same  have 
been  gathered  and  without  record  shall  be  preferred  to  all  other 
liens  or  incumbrances  upon  said  crop  whatever.  Such  liens 
may  be  inforced  by  a  suit  in  equity,  and  upon  judgment  or 
decree  of  foreclosure  the  court  or  judge  shall  allow  as  a  part  of 
the  costs  a  reasonable  sum  as  attorney's  fees.  [L.  1891,  p.  59, 
§20;L.  1913,  c.  86,  §2.] 

Right  Lost  by  Failure  to  Use. 

Beneficial  use  shall  be  the  basis,  the  measure  and  the  limit  of 
all  rights  to  the  use  of  water  in  this  State,  and  whenever  here- 
after the  owner  of  a  perfected  and  developed  water  right  shall 
cease  or  fail  to  use  the  water  appropriated,  for  a  period  of  five 
successive  years,  the  right  to  use  shall  thereupon  cease,  and 
such  failure  to  use  shall  be  conclusively  presumed  to  be  an 
abandonment  of  such  water  right,  and  thereafter  the  water 
which  was  the  subject  of  use  under  such  water  right  shall 
revert  to  the  public  and  become  again  the  subject  of  appro- 
priation in  the  manner  provided  by  law,  subject  to  existing 
priorities;  provided,  that  this  act  shall  not  apply  to,  or  affect, 
the  use  of  water,  or  rights  of  use,  acquired  by  cities  and  towns 
in  this  State,  by  appropriation,  or  by  purchase,  for  all  reason- 
able and  usual  municipal  purposes;  and  this  act  shall  not 
be  so  construed  as  to  impair  any  of  the  rights  of  such  cities  and 
towns  to  the  use  of  water,  whether  acquired  by  appropriation 
or  purchase,  or  heretofore  recognized  by  act  of  the  legislature, 
or  which  may  hereafter  be  acquired ;  and  the  right  of  all  cities 
and  towns  in  this  State  to  acquire  rights  to  the  use  of  the  water 
of  natural  streams  and  lakes  within  the  State,  not  otherwise 
appropriated,  and  subject  to  existing  rights,  for  all  reasonable 
and  usual  municipal  purposes,  and  for  such  future  reasonable 
and  usual  municipal  purposes  as  may  reasonably  be  anticipated 
by  reason  of  growth  of  population,  or  to  secure  sufficient  water 
supply  in  cases  of  emergency,  is  hereby  expressly  confirmed. 
[L.  1913,  c.  279,  p.  531.] 

§  6571.  Right  to  Appropriate  Lost  by  Abandonment. 

The  right  to  appropriate  water  hereby  granted  may  be  lost 
by  abandonment;  and  if  any  persons,  companies,  or  corpora- 
tions constructing  a  ditch,  canal,  flume,  or  pipe  line  under  the 
provisions  of  this  act  shall  fail  or  neglect  to  use  the  same  for 
a  period  of  two  years  at  any  time,  it  shall  be  taken  and  deemed 


WATER  LAWS  OF  THE  STATE  OF  OREGON  51 

to  have  abandoned  its  appropriation,  and  the  water  appropri- 
ated shall  revert  to  the  public  and  be  subject  to  other  appropri- 
ations in  order  of  priority;  but  the  question  of  abandonment 
shall  be  one  of  fact,  to  be  tried  and  determined  as  other  ques- 
tions of  fact.  [L.  1899,  p.  179,  §  20;  B.  &  C.  §  5041.] 

Such  right  may  be  extinguished  by  any  act  showing  an  intent  to  surrender 
or  abandon  the  right,  after  which,  if  the  person  having  the  right  ceases  its  use, 
for  the  statutory  period  of  abandonment,  his  interest  is  lost.  (Pringle  Falls 
Elec.  Power  &  Water  Co.  v.  Patterson  et  al.,  132  Pac.  526.) 

§  6598.  State    Engineer;    Appointment,    Duties,    Qualifications,    and 
Salary. 

A  State  Engineer,  technically  qualified  and  experienced  as 
an  hydraulic  engineer,  shall  be  appointed  by  the  Governor 
upon  the  recommendation  of  the  director  of  the  United  States 
geological  survey  and  confirmed  by  the  Senate.  He  shall  hold 
office  for  the  term  of  four  years  from  and  after  his  appoint- 
ment, unless  sooner  removed  by  the  Governor  for  cause,  and 
until  his  successor  shall  have  been  elected  and  shall  have 
qualified.  He  shall  have  general  supervision  of  all  the  meas- 
urements and  records  of  appropriation  of  waters  of  the  State, 
and  of  all  surveys  and  engineering  work  in  which  the  State  may 
be  interested,  and  for  which  funds  are  provided,  and  shall 
perform  all  work  in  connection  therewith.  He  shall  receive 
a  salary  of  $2,400  per  annum  and  actual  and  necessary  travel- 
ing expenses  while  away  from  his  office  in  the  discharge  of 
official  duties,  and  shall  not  engage  in  private  practice.  He 
may  employ  assistants  and  purchase  materials  and  supplies 
necessary  for  the  proper  conduct  and  maintenance  of  his 
office  and  department,  in  pursuance  of  appropriations  as  made 
from  time  to  time  for  such  purposes.  The  salaries  and 
expenses  of  the  office  of  the  State  Engineer  shall  be  paid  at 
the  same  time  and  in  the  same  manner  as  those  of  other  officers 
of  the  State.  The  office  of  the  State  Engineer  shall  be  located 
at  the  seat  of  government  in  the  Capitol  Building.  The  State 
Engineer  and  his  authorized  assistants  and  agents,  may  enter 
upon  any  private  property  for  the  performance  of  their  respec- 
tive duties,  doing  no  unnecessary  injury  thereto.  The  State 
Engineer  shall  prepare  and  deliver  to  the  Governor  on  or 
before  November  30th  of  the  year  preceding  the  regular  ses- 
sion of  the  legislature,  and  at  other  times  when  required  by 
the  Governor,  a  full  report  of  the  work  of  his  office,  including 
a  detailed  statement  of  the  expenditures  thereof,  with  such 
recommendations  for  legislation  as  he  may  deem  advisable. 
[L.  1905,  c.  228,  p.  403,  §  6.] 

This  and  the  succeeding  section  are  in  the  main  covered  by  the  act  of  1909, 
§  6597,  etc.,  but  since  they  contain  some  provisions  not  included  in  that  act  and 
are  not  expressly  repealed,  they  are  allowed  to  stand. 


52  WATER  LAWS  OP  THE  STATE  OF  OREGON 


§  6599.  Oath  and  Bond  of  State  Engineer. 

Before  entering  upon  the  duties  of  his  office  the  State 
Engineer  shall  give  bond  to  the  State  with  sufficient  sureties 
in  the  sum  of  $5,000  for  the  faithful  performance  of  his 
duties,  which  bond  shall  be  approved  by  and  filed  in  the  office 
of  the  Secretary  of  State,  together  with  the  following  oath  of 

office:    "I, ,  being  duly  sworn,  do  say  that  I  am 

the  duly  appointed  State  Engineer  of  the  State  of  Oregon, 
and  that  I  will  faithfully  and  honestly  perform  the  duties  of 
such  office,  and  that  I  am  not  directly  or  indirectly,  pecuniarily 
or  otherwise  interested  with  any  person,  association  or  cor- 
poration using  or  to  use  any  of  the  waters  of  the  State  for 
any  beneficial  purpose,  in  such  use  thereof,  and  will  not  during 
my  term  of  office  become  so  interested  therein  or  receive  any 
pecuniary  aid  or  benefit  therefrom,  and  shall  not  permit  any 
assistant  employed  by  me  to  be  or  become  so  interested  or 
receive  any  pecuniary  aid  or  benefit  from  such  person,  associa- 
tion, or  corporation  while  so  employed."  [L.  1905,  c.  228,  p. 
404,  §  7.] 

§  6600.  Records  of  State  Engineer. 

The  records  of  the  office  of  the  State  Engineer  are  public 
records  and  shall  remain  on  file  in  his  office  and  be  open  to  the 
inspection  of  the  public  at  all  times  during  business  hours. 
Such  records  shall  show  in  full  all  maps,  profiles,  and  engineer- 
ing data  relating  to  the  use  of  water,  and  certified  copies 
thereof  shall  be  admissible  as  evidence  in  all  cases  where  the 
original  would  be  admissible  as  evidence.  [L.  1905,  c.  228, 
P.  404,  §  8.] 

§  6658.  Parties  and  Costs  of  Suits. 

In  any  suit  wherein  the  State  is  a  party,  for  the  determina- 
tion of  a  right  to  the  use  of  the  waters  of  any  stream  system, 
all  who  claim  the  right  to  use  such  waters  shall  be  made 
parties.  When  any  such  suit  has  been  filed  the  court  shall  call 
upon  the  State  Engineer  to  make  or  furnish  a  complete  hydro- 
graphic  survey  of  such  stream  system  as  hereinbefore  provided 
in  order  to  obtain  all  data  necessary  to  the  determination  of 
the  rights  involved.  The  disbursements  made  in  litigating  the 
rights  involved  in  such  suit  shall  be  taxed  by  the  court  as  in 
other  equity  suits.  [L.  1905,  c.  228,  p.  402,  §  4.] 

§  6659.  Decrees  Adjudicating  Water  Eights. 

Upon  the  adjudication  of  the  rights  to  the  use  of  the  water 
of  a  stream  system,  a  certified  copy  of  the  decree  shall  be  pre- 
pared by  the  clerk  of  the  court,  without  charge,  and  filed  in  the 
office  of  the  State  Engineer.  Such  decree  shall  in  every  case 


WATER  LAWS  OP  THE  STATE  OF  OREGON  53 

declare,  as  to  the  water  right  adjudged  to  each  party,  whether 
riparian  or  by  aupropriation,  the  extent,  the  priority,  amount, 
purpose,  place  of  use,  and,  as  to  water  used  for  irrigation,  the 
specific  tracts  of  land  to  which  it  shall  be  appurtenant,  together 
with  such  other  conditions  as  may  be  necessary  to  define  the 
right  and  its  priority.  [L.  1905,  c.  228,  p.  403,  §  5.] 

(d)     DITCHES,  DIVERSION  WORKS,  ETC. 

§  6673.  Ditches  for  Waste,  Spring,  or  Seepage  Water. 

All  ditches  now  constructed,  or  hereafter  to  be  constructed, 
for  the  purpose  of  utilizing  the  waste,  spring,  or  seepage 
waters  of  the  State,  shall  be  governed  by  the  same  laws  relat- 
ing to  priority  of  right  as  those  ditches  constructed  for  the 
purpose  of  utilizing  the  waters  of  running  streams ;  provided, 
that  the  person  upon  whose  lands  the  seepage  or  spring  water 
first  arise,  shall  have  the  right  to  the  use  of  such  waters.  [L. 
1893,  p.  150,  §  1 ;  B.  &  C.  §  5019.] 

Under    this    section    there    is    no    dif-  This      section      conferring      on      the 

ference    in    the    right    of    appropriation  owner     of     land     on     which     spring    or 

between   springs  and   running   streams,  seepage   water   issues   the   right   to   use 

and   the  prior  appropriator  of  the  wa-  such  water,  was  intended  to  give  such 

ters  of  a  spring  will  be  as  much  pro-  water  to  such  owner,  and  he  may  pre- 

tccted   as   the  appropriator   of   the  wa-  vent  it  from  passing  off  his  own  land: 

ters  of  a  stream:      Brosnan  v.  Harris,  Morrison  v.  Officer,  48  Or.  569,  87  Pac. 

39    Or.    148.    65    Pac.    867.  896. 

§  6565.  Land  Not  to  Be  Burdened  With  More  Than  One  Ditch. 

No  tract  or  parcel  of  improved  or  occupied  land  in  this 
State  shall,  without  the  written  consent  of  the  owner  thereof, 
be  subjected  to  the  burden  of  two  or  more  ditches  or  canals, 
flumes,  or  pipe  lines,  constructed  under  this  act  for  the  pur- 
pose of  conveying  water  through  said  property  when  the  same 
object  can  be  feasibly  and  practically  attained,  uniting  and 
conveying  all  the  water  necessary  to  be  conveyed  through  such 
property  in  one  ditch,  canal,  flume,  or  pipe  line,  and  any  per- 
sons, companies,  or  corporations  having  constructed  a  ditch, 
canal,  flume,  or  pipe  line  for  the  purpose  hereinbefore  pro- 
vided shall  allow  any  other  persons,  companies,  or  corporations 
to  enlarge  such  ditch,  canal,  flume,  or  pipe  line,  so  as  not  to 
interfere  with  the  operations  of  the  persons,  companies,  or 
corporations  owning  the  same,  and  use  such  ditch,  canal, 
flume,  or  pipe  line  in  common  with  the  persons,  companies,  or 
corporations  owning  the  same,  upon  payment  to  such  persons, 
companies,  or  corporations  of  a  reasonable  proportion  of  the 
cost  of  constructing  and  maintaining  such  ditch,  canal,  flume, 
or  pipe  line.  Such  persons,  companies,  or  corporations  shall 
be  jointly  liable  to  any  person  damaged.  [L.  1899,  p.  177, 
§14;  B.  &  C.  §5035.] 


Sig.     5 


54  WATER  LAWS  OF  THE  STATE  OF  OREGON 


§  6574.  Rights  of  Way  Over  State  Lands. 

The  right  of  way  to  the  extent  hereinbefore  specified,  for 
the  ditches  or  canals,  flumes,  pipe  lines,  distributing  ditches, 
and  feeders  of  any  persons,  companies,  or  corporations  appro- 
priating water  under  the  provisions  of  this  act,  across  any 
and  all  lands  belonging  to  the  State  of  Oregon,  and  not  under 
contract  of  sale,  is  hereby  granted.  [L.  1899,  p.  180,  §  23 ; 
B.  &  C.  §  5044.] 

§  6674,  Adjacent  Owner,  Right  to  Use  Machinery  to  Raise  Water. 

Any  person  who  owns  or  has  the  possessory  right  to  any 
land  bordering  on  any  lake  or  natural  stream  of  water,  shall 
have  the  right  to  employ  wheels,  pumps,  hydraulic  engines,  or 
other  machinery  for  the  purpose  of  raising  water  to  the  level 
required  for  the  use  of  such  water  in  irrigating  any  land 
belonging  to  such  owner ;  provided,  that  the  use  of  such  water 
shall  not  conflict  with  the  better  or  prior  right  of  any  other 
person.  [L.  1893,  p.  150,  §  2;  B.  &  C.  §  5020.] 

§6675.  Insufficient  Water;  Preference  Among  Different  Uses. 

When  the  waters  of  any  natural  stream  are  not  sufficient 
for  the  service  of  all  those  desiring  the  use  of  the  same,  those 
using  the  water  for  domestic  purposes  shall,  subject  to  such 
limitations  as  may  be  prescribed  by  law,  have  the  preference 
over  those  claiming  such  water  for  any  other  purpose,  and 
those  using  the  water  for  agricultural  purposes  shall  have  the 
preference  over  those  using  the  same  for  manufacturing  pur- 
poses. [L.  1893,  p.  150,  §  3;  B.  &  C.  §  5021.] 

§  6676.  Right  of  Way  Along  Ditches  to  Be  Kept  Free  of  Weeds. 

From  and  after  the  passage  of  this  act  all  companies,  cor- 
porations, and  private  individuals  owning  or  controlling  any 
water  ditches,  shall  keep  the  right  of  way  of  said  companies, 
corporations,  or  private  individuals  along1  saM  ditches,  clean 
and  free  from  wild  oats,  mustard,  thistles,  or  any  weeds  or 
obnoxious  grasses  whatsoever.  [L.  1905,  c.  158,  p.  270,  §  1.] 

§  6677.  Penalty  for  Violation. 

Any  company,  corporation,  or  private  individual  violating 
any  of  the  provisions  of  this  act  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined  in  a 
sum  not  less  than  $25  nor  more  than  $150,  together  with  the 
costs  and  disbursements  of  the  action,  and  in  default  of  the 
payment  of  such  fine  and  costs  shall  be  confined  in  the  county 
jail  one  day  for  each  $2.00  thereof.  [L.  1905,  c.  158,  p.  271, 
§2.] 


WATER  LAWS  OP  THE  STATE  OP  OREGON  55 


§  6678.  Justices'  Courts  to  Have  Jurisdiction. 

Courts  of  the  justice  of  the  peace  shall  have  concurrent 
jurisdiction  with  the  circuit  courts  of  this  State  in  the  trial  of 
all  proceedings  under  this  act.  [L.  1905,  c.  158,  p.  271,  §  3.] 

§  6539.  Head  Gates  Must  Be  Maintained, 

Every  corporation  constructing  a  ditch  or  canal  or  flume 
under  the  provisions  of  this  act  shall  be  required  to  erect  and 
keep  in  good  repair  a  head  gate  at  the  head  of  its  ditch  or  canal 
or  flume,  which,  together  with  the  necessary  embankments, 
shall  be  of  sufficient  height  and  strength  to  control  the  water 
at  all  ordinary  stages.  The  framework  of  such  head  gate  shall 
be  of  timber  not  less  than  four  inches  square,  and  the  bottom, 
sides,  and  gate  or  gates  shall  be  of  plank  not  less  than  two 
inches  in  thickness.  [L.  1891,  p.  57,  §15;  B.  &  C.  §5007.] 

§  6540.  Damages,  for  What  Ditch  Owner  Liable. 

Every  corporation  constructing  a  ditch  or  canal,  flume,  or 
reservoir,  under  the  provisions  of  this  act  shall  be  liable  for  all 
damage  done  to  the  persons  or  property  of  others,  arising  from 
leakage  or  overflow  of  water  therefrom  growing  out  of  want 
of  strength  in  the  banks  or  walls,  or  negligence  or  want  of  care 
in  the  management  of  said  ditch  or  canal,  flume,  or  reservoir ; 
provided,  that  damage  resulting  from  extraordinary  and 
unforeseen  action  of  the  elements,  or  attributable  in  whole  or 
in  part  to  the  wrongful  interference  of  another  with  said  ditch 
or  canal,  flume,  or  reservoir,  which  may  not  be  known  to  said 
corporation  for  such  length  of  time  as  would  enable  it  by  the 
exercise  of  reasonable  efforts  to  remedy  the  same,  shall  not  be 
recovered  against  said  corporation.  [L.  1891,  p.  57,  §16; 
B.  &  C.  §  5008.] 

§  6536.  Shortest  Practicable  Route  Must  Be  Selected. 

Whenever  any  corporation  organized  as  aforesaid  shall  find 
it  necessary  to  construct  its  ditch  or  canal,  flume,  distributing 
ditches,  or  feeders  across  the  improved  or  occupied  lands  of 
another,  it  shall  select  the  shortest  and  most  direct  route  prac- 
ticable, having  reference  to  cost  of  construction  upon  which 
said  ditch  or  canal,  flume,  distributing  ditches,  or  feeders  can 
be  constructed  with  uniform  or  nearly  uniform  grade.  [L. 
1891,  p.  56,  §  12 ;  B.  &  C.  §  5004.] 

§  6542.  Embankments  Must  Be  Maintained. 

Every  corporation  constructing  a  ditch  or  canal  or  flume 
under  the  provisions  of  this  act  shall  carefully  keep  and  main- 
tain the  embankments  and  walls  thereof,  and  of  any  reservoir 


56  WATER  LAWS  OP  THE  STATE  OP  OREGON 

constructed  to  be  used  in  conjunction  therewith,  so  as  to  pre- 
vent the  water  from  wasting  and  from  flooding  or  damaging 
the  premises  of  others ;  and  it  shall  not  divert  at  any  time  any 
water  for  which  it  has  not  actual  use  or  demand.  [L.  1891, 
p.  58,  §18;  B.  &  C.  §5010.] 

§  6545.  Ditches,  Etc.,  Are  Real  Estate. 

All  ditches  or  canals  and  flumes  permanently  affixed  to  the 
soil,  constructed  under  the  provisions  of  this  act,  are  hereby 
declared  to  be  real  estate,  and  the  same  or  any  interest  therein 
shall  be  transferred  by  deed  only,  duly  witnessed  and  acknowl- 
edged. The  vendee  of  the  same,  or  any  interest  therein,  at  any 
stage  shall  succeed  to  all  the  rights  of  his  vendor,  and  shall  be 
subject  to  the  same  liabilities  during  his  ownership.  [L.  1891, 
p.  59,  §21;B.  &  C.  §5013.] 

Revocation  of  a  license  to  use  a  ditch  does  not  terminate  licensee's  water 
rights.  (I son  v.  Sturgill,  57  Or.  109.) 

§  6546.  Right  to  Appropriate  Water  Lost  by  Abandonment. 

The  right  to  appropriate  money  [water]  hereby  granted 
may  be  lost  by  abandonment ;  and  if  any  corporation  construct- 
ing a  ditch  or  canal  or  flume  under  the  provisions  of  this  act 
shall  fail  or  neglect  to  use  the  same  for  the  period  of  one  year 
at  any  time,  it  shall  be  taken  and  deemed  to  have  abandoned 
its  appropriation,  and  the  water  appropriated  shall  revert  to 
the  public,  and  be  subject  to  other  appropriations  in  order  of 
priority ;  but  the  question  of  abandonment  shall  be  one  of  fact, 
to  be  tried,  and  determined  as  other  questions  of  fact.  [L. 
1891,  p.  59,  §  22;  B.  &  C.  §  5014.] 

An  "abandonment"  as  applied  to  water  appropriation,  is  an  intentional 
relinquishment  of  a  known  right,  ascertained  from  the  conduct  and  declaration 
of  the  appropriator.  (Pringle  Falls  Elec.  I'mrcr  a-  Water  Co.  v.  Patterson  et  al., 
132  Pac.  52G.) 

§  6548.  Parties  in  Suits  to  Protect  Water  Rights. 

In  any  suit  which  may  hereafter  be  commenced  for  the  pro- 
tection of  rights  to  water  acquired  under  the  provisions  of  this 
act,  the  plaintiff  may  make  any  or  all  persons  who  have 
diverted  water  from  the  same  stream  or  source,  parties  to  such 
suit,  and  the  court  may  in  one  decree  determine  the  relative 
priorities  and  rights  of  all  parties  to  such  suit.  Any  person 
claiming  a  right  on  said  stream  or  source,  not  made  a  party  to 
such  suit,  may  become  such  on  application  to  the  court,  when 
it  is  made  to  appear  that  he  is  interested  in  the  result  of  the 
suit,  and  may  have  his  right  determined,  and  the  court  may, 
at  any  stage,  on  its  own  motion,  require  any  or  all  persons 
having  or  claiming  rights  to  water  on  said  stream  or  source,  to 
be  brought  in  and  made  parties  to  said  suit,  when  it  appears 


WATER  LAWS  OF  THE  STATE  OF  OREGON  57 

that  a  complete  determination  of  the  issue  involved  cannot  be 
made  without  the  presence  of  such  person  or  persons.  [L. 
1891,  p.  59,  §  24;  B.  &  C.  §  5016.] 

§  6550.  Legislature  May  Fix  Water  Rates. 

This  act  may  at  any  time  be  amended  by  the  legislative 
assembly,  and  commissioners  for  the  management  of  water 
rights  and  the  use  of  water  may  be  appointed,  and  rates  for 
the  use  of  water  may  be  fixed  by  the  legislative  assembly  or  by 
such  commissioners;  but  rates  shall  not  be  fixed  lower  than 
will  allow  the  net  profits  of  any  ditch  or  canal  or  flume  or  sys- 
tem thereof  to  equal  the  prevailing  legal  rate  of  interest  on  the 
amount  of  money  actually  paid  in  and  employed  in  the  con- 
struction and  operation  of  said  ditch  or  canal  or  flume,  or  sys- 
tem thereof.  [L.  1891,  p.  60,  §  26;  B.  &  C.  §  5018.] 

§  5136.  Ditches  and  Mining  Flumes  Eeal  Property — Abandonment  Of. 

Ditches  and  mining  flumes,  permanently  affixed  to  the  soil, 
are  hereby  declared  to  be  real  estate ;  provided,  that  whenever 
any  person,  company,  or  corporation,  being  the  owner  of  any 
such  ditch,  flume,  and  the  water  right  appurtenant  thereto, 
shall  cease  to  operate  or  exercise  ownership  over  said  ditch, 
flume,  or  water  right,  for  a  period  of  five  years,  and  every  per- 
son, company,  or  corporation  who  shall  remove  from  this  State 
with  the  intent  or  purpose  to  change  his  or  its  residence,  and 
shall  remain  absent  one  year  without  using  or  exercising 
ownership  over  such  ditch,  flume,  or  water  right,  shall  be 
deemed  to  have  lost  all  title,  claim,  and  interest  therein.  [L. 
1898,  p.  18,  §  9.] 

Where    a    person    has    not    used    for  abandonment,    the   party   fails   to   exer- 

the  purpose  of  conveying  water  a  min-  cise   acts   of   ownership   within   a   year 

ing   ditch    for   eight   or   ten   years,    and  his  right  is  lost :     Dodge  v.'  Marden,  1 

no   acts  of   ownership   have   been   exer-  Or.    457. 

cised    thereover,    there    was    an    aban-  No  overt  act  is  necessary  to  cortsti- 

donment   of    such   ditch :     Ison   v.    Nel-  tute    an    abandonment,    it   results   from 

son  Min.   Co.,   47   Fed.   202.  an    exercise    of    the    will :      Sharkey   v. 

There  can  be  no  abandonment,  how-  Candiani,  48  Or.   112,   85   Pac.   219. 

ever,  without  some  act  of  the  will  and  This  section  is  held  not  applicable  to 

an  intent  to  abandon  ;  such  intent  may  a   reservoir ;    a   "ditch"   being  an  aque- 

be    inferred    from    the    declaration    and  duct,    and    a    "flume"    being   a   part   of 

acts    of    the    party    charged    with    the  a    "ditch."      Moore    v.    United   Elkhorn 

abandonment,    and    where,    after    such  Mines,  127   Pac.   964. 

§  7444.  Liens  Authorized  on  Mines  in  Favor  of  Laborer,  Material- 
man,  Etc. 

Every  person  who  shall  perform  labor  upon,'  or  furnish 
material  for  the  working  or  development  of  any  mine,  lode, 
mining  claim,  or  deposit  yielding  or  containing  coal,  metal  or 
mineral  of  any  kind,  or  for  the  working  or  development  of 
any  such  mine,  lode,  mining  claim  or  deposit  in  search  of  any 
such  coal,  metal  or  mineral ;  and  any  person  who  shall  do  work 


58  WATER  LAWS  OF  THE  STATE  OF  OREGON 


upon  or  furnish  materials  for  any  shaft,  tunnel,  incline,  adit, 
drift,  or  other  excavation  designed  for  the  use,  or  working,  or 
draining  of  any  such  mine,  lode,  mining  claim  or  deposit;  and 
any  person  who  shall  do  work  or  furnish  material  for  any  road, 
tramway,  train  (trail),  flume,  ditch  or  pipe  line,  building, 
structure  or  superstructure  used  for,  or  in  connection  with 
the  work  or  development  of  any  such  mine,  lode,  mining 
claim,  or  deposit;  and  any  person  who  shall  perform  labor 
or  service  in  freighting  or  packing  any  material  or  supplies 
for  the  use,  working  or  development  of  any  such  mine,  lode, 
mining  claim,  or  deposit,  or  for  labor  performed  in  transport- 
ing material  or  the  product  from  such  mine,  lode,  mining  claim, 
or  deposit,  road,  tramway,  trail,  flume,  ditch  or  pipe  line,  build- 
ing, structure  or  superstructure ;  and  any  person  who  shall 
furnish  any  provisions,  materials  or  supplies  for  the  working 
or  development  of  any  such  mine,  lode,  mining  claim,  or  deposit, 
or  the  working  or  operation  of  any  road,  tramway,  trail, 
flume,  ditch  or  pipe  line,  building,  structure  or  superstructure, 
used  or  operated  in  connection  therewith,  shall  have  a  lien 
upon  such  mine,  lode,  deposit,  mining  claim,  (deposit),  road, 
tramway,  trail,  flume,  ditch  or  pipe  line,  building,  structure 
or  superstructure  to  secure  to  him  the  payment  for  the  work 
or  labor  done,  or  material  furnished,  which  lien  shall  attach 
in  every  case  to  such  mine,  lode,  mining  claim,  deposit,  road, 
tramway,  trail,  flume,  ditch  or  pipe  line,  building,  structure 
or  superstructure  owned  or  used  in  connection  with  the  opera- 
tion and  development  of  the  same;  provided,  that  when  two 
or  more  mines,  lodes,  mining  claims  or  deposits  are  owned  or 
claimed  by  the  same  person  or  persons,  and  worked  through  a 
common  shaft  or  tunnel,  incline,  adit,  drift  or  other  excavation, 
or  over  one  tram,  or  at  one  mill  or  other  reduction  works, 
then  all  the  mines,  lodes,  mining  claims  or  deposits  so  worked, 
and  all  roads,  tramways,  trails,  flumes,  ditches  or  pipe  lines, 
buildings,  structures  or  superstructures  used  or  owned  in 
connection  therewith,  shall,  for  the  purpose  of  this  act,  be 
deemed  one  mine ;  and  provided  further,  that  this  section  shall 
not  be  deemed  to  apply  to  the  owner  or  owners  of  any  mine, 
lode,  mining  claim,  deposit,  shaft,  tunnel,  incline,  adit,  drift 
or  other  excavation,  road,  tramway,  trail,  flume,  ditch  or 
pipe  line,  building,  structure  or  superstructure,  when  the  same 
shall  be  worked  by  a  lessee  or  lessees,  or  by  any  person  or 
persons  other  than  the  owner;  provided,  the  lessor  or  lessors 
or  other  person  or  persons  other  than  the  owner  of  any  such 
mine,  lode,  deposit,  shaft,  tunnel,  incline,  adit,  drift  or  other 
excavation,  millsite  or  mill,  shall  have  recorded  in  the  mining 
records  of  the  county  wherein  any  such  mining  property  is 


WATER  LAWS  OF  THE  STATE  OF  OREGON  59 

located,  a  copy  of  such  lease,  or  any  other  instrument,  before 
the  work  shall  have  begun  on  such  property,  except  as  herein- 
after stated;  provided  further,  that  the  owner  or  owners  of 
any  such  mine  or  mines,  lodes,  deposits,  shaft,  tunnel,  incline, 
adit,  drift  or  other  excavation,  mill  or  millsite,  shall,  in  the 
manner  hereinafter  prescribed,  post,  or  cause  to  be  posted, 
at  not  less  than  three  conspicuous  places  upon  such  mine,  at  or 
near  the  place  thereon  where  the  same  is  being  worked  or 
developed,  a  notice  in  writing,  signed  by  the  owner  or  owners 
of  such  property,  stating  the  name  or  names  of  the  lessees, 
or  other  person  or  persons  other  than  the  owner  operating 
said  property,  and  that  the  owner  or  owners  thereof  will  not 
be  responsible  for  any  debt  or  debts  contracted  by  the  lessee 
or  lessees,  or  other  person  or  persons  other  than  the  owner,  in 
connection  with  the  working,  operation  or  development  of  such 
property  or,  for  any  work,  improvement  or  development 
thereon  under  such  lease  or  other  instrument.  The  failure  of 
any  owner  or  owners  of  such  property  to  post  the  notices  above 
provided  for,  and  secure  the  proper  recording  thereof,  shall 
be  deemed  conclusive  proof  of  the  consent  of  such  owner  or 
owners  that  his  or  their  interest  in  such  mine  shall  be  subject 
to  any  lien  filed  under  the  provisions  of  this  act.  [L.  1891, 
p.  76,  §  1 ;  L.  1899,  p.  180,  §  1 ;  L.  1907,  c.  152,  p.  294,  §  1.] 

§  7445.  Lien  Claimant  to  File  Claim,  Within  What  Time. 

It  shall  be  the  duty  of  every  laborer  or  materialman  claim- 
ing the  benefit  of  this  act,  within  sixty  days  after  he  has  ceased 
to  labor  thereon  from  any  cause,  or  after  he  has  ceased  to 
furnish  materials  therefor,  to  file  with  the  county  clerk  of  the 
county  in  which  such  mine,  lode,  mining  claim,  or  deposit 
yielding  or  containing  coal,  metal  or  mineral  of  any  kind  shall 
be  situate,  or  a  claim  containing  a  true  statement  of  his  de- 
mand, after  deducting  all  just  credits  and  offsets,  with  the 
name  of  the  owner  or  reputed  owner,  if  known,  and  also  the 
name  of  the  person  by  whom  he  was  employed  or  to  whom  he 
furnished  the  materials,  and  also  a  description  of  the  property 
to  be  charged  with  such  lien  sufficient  for  identification,  which 
claim  shall  be  verified  by  the  oath  of  himself  or  some  other 
person  having  a  knowledge  of  the  facts.  [L.  1891,  p.  77,  §  2; 
L.  1907,  c.  152,  p.  295,  §  2.] 

This  section  requiring  a  claimant  to  act  shall  take  certain  steps  to  perfect 

file  a  "true  statement  of  his  demand,  his  lien;  and  it  was  held  that  the 

after  deducting  all  just  credits,"  a  phrase  "every  person  who  shall  per- 

statement  not  giving  a  credit  for  a  form  labor  on  any  mine,"  etc.,  applies 

conceded  payment  is  fatally  defective,  to  ordinary  laborers  who  perform  ac- 

even  though  the  credit  be  unimportant  tual,  visible  toil  with  their  hands  or 

in  amount:  Lewis  v.  Beeman,  46  Or.  muscles,  other  kinds  of  service  not 

311,  80  Pac.  417.  being  expressly  mentioned,  and  does 

Section  7444,  as  amended,  and  this  not  embrace  superintendents  or  man- 
section  provides  that  every  laborer  agers :  Durkheimer  v.  Copperopolis 
or  materialman  claiming  under  the  Copper  Co.,  55  Or.  37,  104  Pac.  895. 


60  WATER  LAWS  OP  THE  STATE  OP  OREGON 


§  6427.  Supervisors  to  Notify  Owners  of  Water  From  Irrigation  Ditch 
on  Road. 

It  shall  be  the  duty  of  all  road  supervisors  in  each  road 
district  in  any  county  in  this  State,  in  addition  to  the  duties 
heretofore  prescribed  by  law,  to  ascertain  from  time  to  time, 
and  to  know  whether  or  not  there  is  any  water  running  or 
flowing  in  or  upon  any  county  road  or  roads  within  the  dis- 
trict, as  overflow  or  seepage  from  any  irrigation  or  other  ditch 
owned  by  any  person,  company,  or  corporation,  and  he  shall, 
as  he  ascertains  that  there  is  any  such  water  seeping  or  flow- 
ing or  running  upon  any  such  county  road  or  roads,  notify 
the  owner  or  occupant  of  such  ditch  or  of  the  water  therein 
contained,  in  writing,  by  personally  serving  upon  such  owner, 
occupant,  or  user  of  such  irrigation  ditch,  or  other  ditch,  a 
written  or  printed  notice  that  the  water  in  the  irrigation  or 
other  ditch  so  owned  by  said  person,  company,  or  corporation, 
is  -seeping  or  overflowing  or  flowing  on  the  county  road  or 
county  roads  of  his  district,  at  a  point  or  points  on  said  road 
or  roads  more  particularly  described  in  said  notice  with  refer- 
ence to  said  irrigation  or  other  ditch,  or  any  natural  or  arti- 
ficial object  cr  objects,  which  said  notice  shall  further  notify 
such  owner,  occupant,  or  user  of  said  irrigation  or  other  ditch 
of  the  water  flowing  therein  that  such  seepage,  overflowing,  or 
flowing  of  said  water  must  be  stopped  within  six  hours  of  the 
service  of  said  notice,  as  aforesaid,  and  notifying  said  owner, 
occupant,  or  user  of  such  irrigation  or  other  ditch,  to,  within 
six  hours  from  the  hour  of  service  of  such  notice,  have  this 
said  water  diverted  from  said  county  road  or  roads,  and 
to  keep  said  water  from  again  seeping,  flowing,  or  overflow- 
ing upon  said  county  road  or  roads.  [L.  1907,  c.  165,  p.  315, 
§  1-] 
§  6428.  Supervisor  Must  Divert  Water  If  Owner  Fails. 

If  such  owner,  occupant,  or  user  of  said  water  shall  fail  or 
refuse  to  remove  or  divert  said  water  from  said  county  road 
or  roads  within  six  hours  after  being  notified  by  the  road 
supervisor  of  the  existence  of  such  water  in  or  upon  said 
road  or  roads,  then  it  shall  be  the  duty  of  such  road  supervisor, 
and  he  shall  have  authority  to  go  upon  that  part  of  the  land 
upon  which  said  irrigation  ditch  or  other  ditch  is  situated, 
through  which  said  water  has  been  conducted  or  is  being  con- 
ducted, calling  to  his  assistance  such  help  as  he  may  deem 
necessary  to  cause  said  water  to  be  diverted  from  and  removed 
from  said  county  road  or  roads,  in  the  manner  which  to  him 
seems  most  effective  and  that  will  most  speedily  remove  and 
withdraw  said  water  from  said  county  road  or  roads,  and  that 


WATER  LAWS  OP  THE  STATE  OP  OREGON  61 

will  prevent  the  said  water  or  any  water  in  said  irrigation  or 
other  ditch  from  returning  upon  or  overflowing  said  county 
road  or  roads.  [L.  1907,  c.  165,  p.  316,  §  2.] 

§  6429.  Supervisor  to  File  Statement  of  Expense  Which  Shall  Be  Lien. 

Upon  the  completion  of  said  work  the  road  supervisor  will 
file  with  the  county  clerk  of  the  county  in  which  such  road  or 
roads  are  situated  an  itemized  statement  of  the  time  occupied 
by  him  and  his  assistants  and  the  reasonable  compensation 
for  diverting  and  removing  said  water  from  said  county  road 
or  roads,  together  with  the  name  of  the  owner  and  occupant 
of  the  land  on  which  said  irrigation  or  other  ditch  which 
brought  said  water  to  said  county  road  or  roads  is  situated, 
together  with  the  date  and  hour  when  said  notice  was  served 
on  such  owner  or  occupant  of  said  land,  verified  by  his  oath, 
and  when  said  statement  is  filed  the  county  clerk  shall  cause 
the  same  to  be  entered  upon  the  lien  docket  prepared  for  that 
purpose,  and  the  amount  of  such  charges  and  expenses,  when 
so  docketed,  shall  constitute  a  first  lien,  prior  and  superior 
to  all  other  liens  or  charges  on  said  land  or  premises,  except- 
ing taxes.  [L.  1907,  c.  165,  p.  316,  §  2.] 

§  6430.  District  Attorney  to  Foreclose. 

If  such  charges  and  expenses  are  not  paid  and  said  lien 
discharged  by  the  owner  or  occupant  of  said  lands  within 
sixty  days  after  the  same  is  docketed,  it  shall  be  the  duty  of 
the  district  attorney  in  which  said  county  is  situated  to  bring  a 
suit  in  the  name  of  the  said  county  for  the  foreclosure  of  said 
lien,  and  the  lands  affected  thereby  shall  be  sold  under  execu- 
tion for  the  payment  and  satisfaction  of  such  charges  and 
expenses  of  said  lien  and  all  charges  touching  the  same.  [L. 
1907,  c.  165,  p.  316,  §  2.] 

§  6431.  Expenses,  When  Paid  to  Supervisor. 

If  within  ten  days  after  the  statement  has  been  filed  and 
the  lien  docketed,  as  provided  for  in  Section  6429  hereof,  no 
objections  having  been  filed  thereto,  the  county  court  shall 
pay  the  supervisor  out  of  the  county  funds  the  amount  of  such 
charges  and  expenses,  and  the  same  shall  be  thereafter  recov- 
ered to  the  use  of  the  county,  as  in  the  foregoing  section  pro- 
vided. [L.  1907,  c.  165,  p.  317,  §  3.] 

§  6382.  Owners   of  Ditch,   Etc.,  to  Make  Crossing — Proceedings   on 
Failure. 

Any  person,  company,  or  corporation  owning  or  construct- 
ing any  ditch,  canal,  flume,  or  pipe  line  across  any  public  high- 


62  WATER  LAWS  OF  THE  STATE  OF  OREGON 

way  or  public  traveled  road  shall  put  a  good,  substantial  bridge 
or  culvert,  of  such  width  and  material  as  the  county  court  of 
the  county  in  which  said  bridge  or  culvert  may  be  situated 
shall  order  over  such  ditch,  canal,  flume,  or  pipe  line  where 
it  crosses  said  highway  or  road,  and  shall  thereafter  keep  the 
same  in  good  repair.  Travel  shall  not  be  suspended  by  the 
construction  of  said  ditch,  canal,  flume,  or  pipe  line,  and  such 
bridge  or  culvert  shall  be  completed  within  three  days  from 
the  time  said  highway  or  road  is  intersected.  In  case  such 
bridge  or  culvert  is  not  so  constructed  or  completed  it  shall  be 
the  duty  of  the  road  supervisor  of  the  road  district  in  which 
the  point  of  intersection  is  situated  to  construct  said  bridge  or 
culvert,  and  he  shall  bring  an  action  in  his  own  name,  as  suDer- 
visor,  for  the  use  and  benefit  of  his  road  district,  in  any  court 
of  competent  jurisdiction,  to  recover  the  expenses  of  construct- 
ing said  bridge  or  culvert;  and  in  such  action,  in  addition  to 
the  costs  and  disbursements  provided  by  statute,  he  shall 
recover  such  sum  as  the  court  or  justice,  if  the  action  be 
brought  in  a  justices'  court,  may  adjudge  to  be  reasonable  as 
attorney's  fees  in  said  action.  Appeals  may  be  taken  in  such 
cases  as  in  other  actions.  [L.  1903,  p.  262,  §  66;  L.  1909,  c. 
193,  p.  281.] 

§  5791.    Application  to  Dig  Draining  Ditch  On  Land  of  Another. 

When  any  person,  firm  or  corporation  owning  land  which 
requires  draining,  or  any  incorporated  town  or  city,  in  which 
there  is  any  ditch,  standing  water  or  surplus  water  requiring 
draining,  has  no  means  of  draining  such  ditch,  standing  water 
or  surplus  water,  and  objection  is  made  by  the  owners  of 
adjacent  lard  to  the  construction  thereon  or  thereover  of 
necessary  means  of  drainage,  such  person,  firm,  corporation 
or  municipal  corporation,  may  make  application  in  writing  to 
the  county  court  in  which  such  land,  town  or  city  is  situated, 
for  the  right  of  way  or  privilege  to  cut  or  dig  or  construct 
sufficient  means  of  drainage  over  said  adjacent  land;  like- 
wise any  person,  firm,  corporation  or  municipal  corporation 
whose  land  is  so  situated  that  it  is  injured  or  liable  to  be 
injured  by  flood  waters  from  any  natural  stream  flowing 
through  or  near  to  said  land,  may  make  application  to  the 
county  court  for  the  right  to  enlarge  or  straighten  the  bed 
of  such  natural  stream,  or  strengthen  or  build  up  the  banks 
thereof,  so  as  to  protect  such  lands  from  overflow  or  injury 
thereto.  [L.  1868,  p.  21,  §  1;  L.  1905,  c.  149,  p.  260,  §  1; 
L.  1913,  c.  52,  p.  83.] 

§  5792.     Commissioners  to  Locate  Ditch  and  Assess  Damages. 

Thereupon  the  court  shall  appoint  three  disinterested 
householders  of  his  county  as  a  commission  and  cause  an  order 


WATER  LAWS  OF  THE  STATE  OF  OREGON  63 

to  issue  directing  them  to  meet  on  a  day  named  in  such  order, 
and  after  subscribing  to  an  oath  or  affirmation  to  faithfully 
and  impartially  discharge  the  duties  of  their  appointment,  and 
after  at  least  three  days'  notice  given  to  all  persons  through 
whose  lands  such  ditch  is  to  be  located  or  upon  whose  lands 
such  natural  stream  is  to  be  straightened,  enlarged,  or  the 
banks  of  which  are  to  be  straightened  or  built  up.  [L.  1868, 
p.  21,  §  2;  H.  §  3424;  B.  &  C.  §  4361;  L.  1905,  c.  149,  p.  261, 
§  2.] 

§  5793.     Ditch  Located  So  As  to  Do  Least  Damage. 

Said  commissioners  shall  proceed  to  locate  and  mark  out 
the  route  so  as  to  do  the  least  damage  to  the  lands  such  ditch 
passes  through  and  to  designate  the  location,  character,  and 
extent  of  the  work  to  be  done  in  straightening  the  bed  or  build- 
ing up  the  banks  of  any  such  natural  stream,  and  also  at  the 
same  time  assess  the  damages  sustained  by  the  person  or 
persons  owning  such  land.  [L.  1868,  p.  21,  §  3;  H.  §  3425; 
B.  &  C.  §  4262;  L.  1905,  c.  149,  p.  261,  §  3.] 

§  5794.     Benefits  Considered  in  Assessing  Damages. 

In  assessing  damages,  said  commissioners  shall  take  into 
consideration  all  benefits  which  will  accrue  from  the  work 
contemplated  to  the  aforesaid  lands.  [L.  1868,  §  4 ;  H.  §  3426 ; 
B.  &  C.  §  4363;  L.  1905,  c.  149,  p.  261,  §  4.] 

§  5795.    Report  of  Commissioners — Ditch  May  Be  Built  on  Payment  of 
Damages. 

The  commissioners  so  appointed,  or  a  majority  of  them, 
shall  make  a  report  to  the  county  court  at  the  next  regular 
session  thereof,  stating  the  location  of  the  ditch  or  ditches,  or 
other  work  contemplated,  the  name  of  the  person  or  persons 
entitled  to  damage,  and  the  amount  thereof,  if  any  is  assessed ; 
and  if  the  county  court  is  satisfied  and  the  report  is  just,  and 
after  payment  by  the  applicant  for  right  of  way  of  all  costs  of 
locating  such  ditch,  or  other  work,  and  the  damages,  if  any 
are  assessed,  the  court  shall  cause  the  same  to  be  recorded, 
and  the  applicant  may  proceed  to  make  such  ditch,  or  do  such 
work  of  straightening  said  streams,  or  building  up  or  straight- 
ening the  banks  thereof,  doing  as  little  damage  to  the  land 
it  passes  through  as  possible.  [L.  1868,  p.  21,  §  5;  H.  §  3427; 
B.  &  C.  §  4364;  L.  1905,  c.  149,  p.  261,  §  5.] 

§  5796.  Appeal  May  Be  Had. 

Any  person  aggrieved  by  the  assessment  of  damages  may 
appeal  within  twenty  days  to  the  circuit  court.  [L.  1868, 
p.  22,  §  6;  H.  §  3428;  B.  &  C.  §  4365.] 


64  WATER  LAWS  OF  THE  STATE  OF  OREGON 

§  5797.  Commissioners  May  Administer  Oaths. 

In  the  absence  of  the  justice  of  the  peace,  the  said  com- 
missioners may  administer  the  aforesaid  oath  to  each  other. 
[L.  1868,  p.  22,  §  7;  H.  §  3429;  B.  &  C.  §  4366.] 

§  5798.  Ditch  Cannot  Be  Tapped  Without  Compensation. 

No  person  shall  be  allowed  to  tap  or  bring  water  into  a 
ditch  already  dug  without  paying*  a  reasonable  compensation 
therefor.  [L.  1868,  p.  22,  §  8;  H.  §  3430;  B.  &  C.  §  4367.] 

§  5799.  Act  Not  Construed  So  As  to  Affect  What  Rights. 

This  chapter  shall  not  be  construed  so  as  to  interfere  with 
the  rights  of  companies  or  individuals  for  mining,  manufac- 
turing, or  watering  towns  or  cities.  [L.  1868,  p.  22,  §  9; 
H.  §  3431;  B.  &  C.  §  4368.] 

Since    the    rights    of    those    who    had  persons   desiring  to   construct  drainage 

appropriated     water    from    the    public  ditches  by  the  legislative  act  authoriz- 

domain     for     manufacturing     purposes.  in^   the  digging  of  such  ditches,   under 

prior     to    a    conveyance    thereof    we're  this  section,  a  subsequent  patent  issued 

Protected    by    the    act    of    congress    of  without    reserving    vested    or    accrued 
uly    26,    1866    (14    Stat.    U.    S.    253,    c.  water     rights     does     not     affect     them. 
262,    sec.    9),    and    the    rights   of    such  (Farkersville    Drainage   Dist.    v.    Wat- 
persons    were    also     protected    against  tirr.   4X  Or.   I532,   86  Pac.   775.) 

§  1989.  Trespass  on  Mining  Claims. 

Any  person  who  shall  break  or  rob  in  any  manner,  or  who 
shall  attempt  to  break  or  rob,  any  flume,  rocker,  quartz  mill, 
quartz  vein,  or  lode,  bed  rock  sluice,  sluice  box,  or  mining 
claim  not  his  own,  or  who  shall  trespass  upon  such  mining 
claim  with  the  intent  to  commit  a  felony,  shall,  upon  convic- 
tion thereof,  be  punished  by  imprisonment  in  the  penitentiary 
of  this  State  not  less  tnan  one  nor  more  than  five  years,  or  by 
fine  not  less  than  $100  nor  more  than  $1,000,  or  by  both  such 
imprisonment  and  fine,  as  the  court  or  judge  thereof  may 
direct. 

§  1975.  Injury  to  Conduit,  Dam,  Etc. 

If  any  person  shall  maliciously,  wantonly  or  willfully  cut, 
break  down,  injure,  destroy,  or  remove  any  water  ditch,  canal, 
flume,  trench,  pipe  or  reservoir,  or  any  other  thing  used  for 
conveying,  receiving,  or  holding  water  used  or  designed  for 
mining,  irrigating,  manufacturing,  or  domestic  purposes,  or 
any  dam,  reservoir,  gate,  flume,  flashboard,  or  other  appur- 
tenance used  or  designed  for  any  of  said  purposes,  or  any 
wheel,  wheel  gear,  or  machinery  of  any  mill  or  manufactory, 
or  machinery  used  for  pumping  water  for  any  of  said  purposes, 
or  shall  maliciously  or  without  color  of  right  obstruct,  draw 
off,  or  use  any  portion  of  the  water  flowing  through  or  con- 
tained in  such  water  ditch,  canal,  trench,  pipe,  dam,  or  reser- 


WATER  LAWS  OF  THE  STATE  OP  OREGON  65 


voir,  or  any  mill  pond  or  other  receptacle  used  for  containing 
such  water,  said  person,  upon  conviction  thereof,  shall  be  pun- 
ished by  a  fine  of  not  less  than  $10  nor  more  than  $500.  [L. 
1864;  L.  1865,  (sp.  sess.),  p.  30,  §  1 ;  L.'  1905,  c.  144,  p.  255.] 

§  2356.  Wire  Screens  Required  at  Inlets  to  Canals  and  Ditches. 

Any  person  or  persons,  firm,  or  corporation,  owning  in 
whole  or  in  part,  or  leasing,  operating  or  having  in  charge  any 
mill  race,  irrigating  ditch,  or  canal,  taking  or  receiving  its 
waters  from  any  river,  creek,  or  lake  in  which  fish  have  been 
placed  or  may  exist,  shall  place  or  caused  to  be  placed  and 
maintain  over  the  inlet  of  the  ditch,  canal,  or  mill  race,  when 
required  by  the  Master  Fish  Warden,  a  wire  screen  or  grating 
or  such  other  device,  of  such  construction,  fineness,  strength, 
and  quality  as  shall  prevent  any  fish  from  entering  such  ditch, 
canal,  or  mill  race ;  the  same  to  be  placed  in  such  ditch,  canal, 
or  mill  race  on  a  slant  not  exceeding  forty-five  degrees,  and 
in  such  manner  that  the  bottom  thereof  shall  extend  up  stream 
against  the  flow  of  water;  provided,  that  if  a  grating  device 
be  used  the  space  between  the  bars  shall  not  exceed  one-half 
inch.  Any  person  or  persons,  firm,  or  corporation  violating 
any  of  the  provisions  of  this  section  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be  pun- 
ished by  a  fine  of  not  less  than  $50  and  not  more  than  $500 
and  the  costs  of  the  action,  or  by  imprisonment  in  the  county 
jail  not  less  than  ten  days  nor  more  than  sixty  days,  or  by  both 
such  fine  and  imprisonment;  and  in  case  of  fine  only,  that  he 
be  imprisoned  in  the  county  jail  until  fine  and  costs  of  action 
be  paid  and  he  shall  be  credited  on  such  fine  and  costs  the 
sum  of  $2.00  for  each  day  imprisoned.  Justices  of  the  peace 
shall  have  concurrent  jurisdiction.  [L.  1909,  c.  232,  p.  406, 
§  66.] 

fe/UNNAVIGABLE  STREAMS  MAY   BE  DECLARED   HIGHWAYS. 

§  6453.  County  Court  May  Declare  Streams  Navigable. 

Upon  the  application  of  any  individual,  association,  or  cor- 
poration interested,  the  county  court  of  any  county  of  this 
State  may,  by  order,  declare  all  or  any  portion  of  any  river  or 
stream  lying  within  the  county,  which  has  not  been  declared  by 
law  to  be  navigable,  and  which  is  not  in  fact  navigable  for 
commercial  purposes,  to  be  a  public  highway  for  the  floating 
and  transportation  of  logs,  timbers,  and  lumber,  and  the  same 
shall  thereupon  become  and  be  a  public  highway  for  such 
purpose,  subject  only  to  the  reservations  hereinafter  contained ; 
and  the  court  may  also  at  the  same  time,  or  at  any  time  there- 
after, direct  the  widening,  deepening,  straightening,  removing 


66  WATER  LAWS  OF  THE  STATE  OF  OREGON 


obstructions  from,  building  of  dams  and  booms  in,  and  other- 
wise improving  such  streams  as  may  be  necessary  to  render 
the  same  fit  and  suitable  for  the  purpose  intended,  and  enter 
into  contracts  for  the  performance  of  such  work  according  to 
law.  [L.  1889,  p.  105,  §  1.] 

The     constitutionality     of    a     statute  Co.    v.    Wasco    Countu,    35    Or.    49*.    57 

must    be    determined    by    what    can    be  Pac.   1017.) 

done  under  it,  not  by  what  was  actually  This  and  the  succeeding"  sections  are 

done    in    the    case    under    consideration.  void,   so  far  as  they  authorize  th 

Notice   to   the  land  owner  whose  prop-  ing*    of    private    property    without    due 

erty    is    to    be    appropriated    for   public  process    of    law,    since    no    provision    is 

use,   and  opportunity  to  be  heard   as  to  made   for   notice    to    th"   non-consenting 

whether  his  property  shall  be  taken  at  land  owner  of  the  proceedings  for  ap- 

all,    are    necessary    elein.-nts    of    every  propriation,     or    an    opportunity     given 

lawful  exercise  of  the  right  of  eminent  him    to    defend    as    a    matter    of    right, 

in — without  them  there  is  not  due  (Hond    Rirrr    Lumber    Co.    v.     W«.\-<-<> 

process  of  law.      (Hood  River  Lumber  County,' supra.) 

§  6454.  Proceeding  to  Acquire  Right  of  Adjacent  Owner. 

In  case  any  owner  of  land  adjacent  to  or  across  which  such 
stream  flows  does  not  consent  to  the  use  of  the  stream  for  such 
purpose,  and  the  making  of  the  improvements  directed,  with 
the  right  to  pass  along  the  banks  of  the  stream  for  the  purpose 
of  doing  the  work  and  keeping  the  same  in  repair,  and  properly 
superintending  and  managing  the  use  of  such  highway  for  the 
purpose  intended,  and  the  taking  of  a  fair  rate  of  compensa- 
tion of  such  timber  and  other  materials  along  the  bed  and 
banks  of  the  stream  as  may  be  necessary  for  the  construction 
and  repair  of  the  improvements,  and  grant  the  same  to  the 
county  by  suitable  instruments  in  writing  on  application,  the 
county  court  may  contract  for  and  purchase  any  or  all  of  such 
rights,  or  if  the  same  cannot  be  purchased  at  a  satisfactory 
price,  shall,  when  petitioned  so  to  do  by  any  resident  of  the 
county,  appoint  three  disinterested  householders  of  the  county 
as  viewers  of  such  stream  and  land  adjacent  thereto  which  is 
proposed  to  be  used  or  appropriated  for  the  purpose  of  such 
improvements,  and  it  shall  be  the  duty  of  said  viewers  ap- 
pointed as  aforesaid  to  visit  and  examine  such  stream  and  land 
at  such  points  as  shall  be  directed  by  the  county  court,  and 
report  to  the  county  court  in  writing,  at  such  time  as  shall  be 
fixed  in  the  order  appointing  them,  as  to  whether  damages 
should  be  allowed  to  the  owner  of  the  land  proposed  to  be 
appropriated  for  the  appropriation  thereof  to  the  purposes 
aforesaid,  and  if  so,  the  amount  thereof;  and  such  report,  when 
approved  by  the  county  court,  shall  be  final  unless  appealed 
from  as  hereinafter  provided,  and  if  damages  are  allowed  to 
any  such  owner  by  said  county  court,  such  damage,  together 
with  the  costs  of  the  viewers,  shall  be  paid  to  such  owner  before 
such  stream  or  land  can  be  appropriated  to  the  purpose  of  such 
improvements'.  Any  person  who  may  conceive  himself  ag- 
grieved by  the  assessment  of  damages  as  above  prescribed,  may, 


WATER  LAWS  OF  THE  STATE  OF  OREGON  67 


with'n  twenty  days  after  such  report  is  adopted  by  the  county 
court,  appeal  therefrom  to  the  circuit  court  of  the  proper 
county.  Such  appeal  shall  be  taken  to  the  circuit  court  in  the 
same  manner  as  appeals  from  justice  of  the  peace,  and  if  the 
appellant  shall  fail  to  recover  a  judgment  more  favorable  than 
the  report  appealed  from,  he  shall  pay  all  costs  of  the  appeal. 
[L.  1889,  p.  106,  §  2.] 

§  6455.  Court  May  Contract  With  Lessee. 

Instead  of  itself  securing  the  various  rights  and  making  the 
improvements  necessary,  the  court  may  enter  into  a  contract 
with  any  corporation,  association,  or  individual,  leasing  the 
use  of  such  highway  with  the  right  to  collect  tolls  for  the  raft- 
ing, floating,  and  booming  of  logs,  timber,  and  lumber  thereon, 
at  rates  of  toll  for  transporting  and  for  booming,  to  be  fixed 
by  the  court,  for  a  period  of  years  from  the  completion  of  the 
work  to  be  fixed  by  the  court,  in  consideration  of  an  agreement 
in  such  contract  to  be  contained,  that  the  lessee  will  secure  the 
right  of  way  and  other  necessary  rights  from  land  owners,  and 
make  all  improvements  necessary  for  the  successful  carrying 
on  of  the  business  and  use  of  the  stream  for  the  purposes 
intended,  without  any  expense  to'  the  county,  and  keep  the 
same  m  £rocd  repair  during  the  period  of  such  lease.  [L.  1889, 
P.  106,  f  3.] 

§  6456.  Bond  of  Lessee. 

Within  ten  days  from  the  making  of  such  contract,  and 
before  the  same  shall  go  into  effect,  the  lessee  shall  enter  into  a 
bond  in  such  sum  as  may  be  fixed  by  the  court,  and  with  sure- 
ties' approved  by  the  court,  conditioned  for  the  faithful  per- 
formance of  the  covenants  and  agreements  on  the  part  of  the 
lessee,  in  such  contract  contained.  [L.  1889,  p...  106,  §  4.] 

§  6457.  Tolls  Fixed  by  Court. 

Such  lessee  during  the  term  of  such  lease  shall  receive  and 
float,  or  allow  to  be  floated,  in  such  stream  all  floatable  logs, 
timber,  and  lumber  that  may  be  offered  for  transportation 
therein  by  any  person,  provided  the  same  be  plainly  marked 
with  a  distinctive  mark,  and  shall  have  the  right  to  charge  and 
collect  for  its  own  use  tolls  therefor,  and  for  booming  the  same, 
at  rates  fixed  by  the  county  court  and  inserted  in  the  lease,  and 
shall  have  a  lien  thereon  for  such  tolls.  Upon  expiration  of  the 
lease,  such  lessee  shall  turn  the  property,  with  all  the  improve- 
ments, over  to  the  county  in  good  repair.  [L.  1899,  p.  107, 
§§  5,  6.] 


68  WATER  LAWS  OF  THE  STATE  OF  OREGON 


(f)  THE  APPROPRIATION  OF  WATER  FOR  PUBLIC  BUILDINGS. 

§6581.     Board  of  Building  Commissioners  Must  Provide  Water  for 
Public  Buildings. 

The  board  of  public  building  commissioners,  consisting  of 
the  Governor,  the  Secretary  of  State,  and  the  State  Treasurer, 
is  hereby  instructed  and  authorized  to  provide  for  supplying 
the  State  Insane  Asylum,  the  State  Penitentiary,  the  State 
Capitol  Building,  and  other  public  institutions  of  the  State 
which  now  are,  or  may  be  hereafter,  located  at  or  near  the 
seat  of  government,  with  water  and  water  power  sufficient 
for  the  present  and  future  use  of  such  institutions.  [L.  1901, 
p.  307,  §  1 ;  B.  &  C.  §  5045.] 

Rights  of  State  as  riparian  owner,  see  Salem  Mills  Co.  v.  Lord.  42  Or.  82,  69 
Pac.  1033,  70  Pac.  832. 

§  6582.  Authority  of  Board  to  Acquire  Water. 

The  board  shall  have  full  power  to  carry  into  effect  the 
provisions  of  this  act,  and  it  is  authorized  and  empowered  to 
purchase,  to  contract  for,  and  to  lease,  in  the  name  of  the 
State,  any  real  property,  water,  water  rights  and  water 
courses,  franchises  and  privileges;  and  to  appropriate  and 
condemn  the  same  for  said  purposes,  whenever  the  board  shall 
deem  it  necessary  or  proper,  including  the  right  to  take  and 
condemn  real  property,  water,  water  rights  and  water  courses, 
franchises  and  privileges  heretofore  appropriated  for  or 
devoted  to  a  public  use  by  any  person  or  corporation  whatso- 
ever, under  and  by  virtue  of  the  laws  of  this  State,  or  any 
law  of  the  territory  of  Oregon,  by  any  corporation  or  associa- 
tion ;  to  construct  canals,  flumes,  ditches,  and  pipe  lines  for 
conveying  such  waters,  and  reservoirs  for  the  storage  of  the 
same;  to  construct,  or  cause  to  be  constructed,  electric  and 
heating  plants  and  apparatus  for  such  institutions;  to  go 
upon  any  lands  or  premises,  in  order  to  make  surveys  and 
estimates  of  cost,  and  to  use  such  measures  and  employ  such 
persons  as,  in  the  opinion  of  the  board,  may  be  proper  and 
suitable  to  fully  carry  out  the  purposes  of  this  act;  provided, 
hoivever,  that  when  the  owner  of  any  land,  water,  water 
courses  and  water  rights,  franchises  and  privileges,  shall  fix  a 
price  for  the  same,  which,  in  the  opinion  of  the  board  shall  be 
reasonable,  it  may  purchase  the  same  at  such  price  without 
further  delay ;  and  provided,  that  if  condemnation  proceedings 
are  commenced  under  this  act,  the  board  shall  have  authority 
and  power,  at  the  date  of  the  commencement  of  such  proceed- 
ings, to  take  immediate  possession  of  the  real  property,  water 
and  water  rights,  and  water  courses  and  privileges  heretofore 
in  this  act  mentioned,  or  of  so  much  of  any  or  either  thereof 
as  may  be  necessary  for  the  uses  of  the  State,  and  to  continue 


WATER  LAWS  OF  THE  STATE  OF  OREGON  69 

in  the  possession  and  have  and  enjoy  the  use  thereof  during 
the  pendency  of  such  condemnation  proceedings,  and  until 
the  final  determination  thereof,  including  an  appeal  to  the 
Supreme  Court,  if  appeal  be  taken ;  and  the  reasonable  rental 
value  for  such  time  shall  be  assessed  by  the  jury,  if  the  case 
be  tried  before  a  jury,  otherwise  by  the  court;  and  the  defen- 
dant owner  shall  have  judgment  for  such  reasonable  rental 
value,  regardless  of  whether  the  condemnation  proceedings 
are  finally  decided  for  or  against  the  board,  and  such  reason- 
able rental  value  shall  be  included  in  the  general  damages 
allowed  by  the  court  or  jury.  [L.  1901,  p.  307,  §  3;  B.  &  C. 
§  5046;  L.  1903,  p.  315,  §  1.1 

§  6583.  Proceedings  to  Condemn  Water. 

In  any  condemnation  proceedings  under  the  provisions  of 
this  act,  the  practice,  pleadings,  forms,  and  modes  of  procedure 
shall  conform  as  near  as  may  be  applicable  to  the  practice, 
pleadings,  forms,  and  procedure  prescribed  for  the  appropria- 
tion of  real  property  by  private  corporations,  in  Chapter  1  of 
Title  XLV;  'provided,  hoivever,  that  in  all  of  such  actions  and 
proceedings,  when  it  shall  appear  that  the  board  has  offered 
the  defendant,  before  commencing  the  action,  an  amount  equal 
to  or  greater  than  that  assessed  by  the  jury,  in  that  case  the 
State  shall  recover  its  costs  and  disbursements  off  the 
defendant.  [L.  1901,  p.  308,  §  3;  B.  &  C.  §  5047.] 

§  6584.    Actions  in  Name  of  State — Transfers  to  Be  Made  Directly  to 
the  State. 

All  actions  and  proceedings  shall  be  brought  in  the  name 
of  the  State,  and  the  pleadings  shall  be  verified  by  some  mem- 
ber of  the  board.  All  conveyances  of  lands,  or  water  and  water 
rights,  franchises  and  privileges,  shall  be  made  directly  to  the 
State;  and  all  leases  and  contracts  shall  be  made  by  the  board 
in  the  name  of  and  for  the  use  and  benefit  of  the  State.  [L. 
1901,  p.  308,  §  4;  B.  &  C.  §  5048.] 

§  6585.  Secretary  of  State  to  Audit  Claims. 

All  claims  and  sums  of  money  payable  or  to  become  due 
under  the  provisions  of  this  act  shall  be  audited  and  paid 
by  the  Secretary  of  State  in  the  manner  hereinafter  provided. 
[L.  1901,  p.  308,  §  5;  B.  &  C.  §  5049.] 

§  6586.  Authority  of  the  Board  to  Acquire  Rights. 

The  board  may  from  time  to  time  purchase,  lease,  contract 
for,  or  condemn  any  property,  land,  water  or  water  rights, 
franchises,  and  privileges,  and  may  repair,  improve  and 
enlarge  any  plants,  property  or  property  rights,  ditches, 


70  WATER  LAWS  OP  THE  STATE  OP  OREGON 

flumes,  and  pipe  lines  which  may  be  acquired  or  constructed 
under  the  authority  conferred  by  this  act.  [L.  1901,  p.  308, 
§  6;  B.  &  C.  §  5050.] 

§  6587.  Appropriation  for  Water  Supply. 

For  the  purpose  of  carrying  into  effect  the  provisions  of 
this  act,  there  is  hereby  appropriated  out  of  the  public  treasury 
of  this  State,  from  any  money  not  otherwise  appropriated, 
the  sum  of  $30,000,  or  so  much  thereof  as  may  be  necessary, 
including-  the  expense  of  surveys  and  estimates,  and  of  litiga- 
tion incurred,  or  that  may  be  hereafter  incurred,  concerning 
the  supply  of  water  for  said  institutions ;  and  the  Secretary 
of  State  is  hereby  authorized  and  required  to  draw  a  warrant 
or  warrants  on  the  Treasurer,  and  the  Treasurer  is  to  pay 
all  such  warrants,  for  all  claims  that  have  been  audited  by  the 
Secretary  of  State.  [L.  1901,  p.  309,  §  7;  B.  &  C.  §  5051.] 

(g)  APPROPRIATIONS  OF  WATER  BY  THE  UNITED  STATES. 
§  6588.  Appropriation  of  Water  by  United  States. 

Whenever  the  proper  officers  of  the  United  States,  author- 
ized by  law  to  construct  works  for  the  utilization  of  water 
within  this  State,  shall  file  in  the  office  of  the  State  Engineer 
a  written  notice  that  the  United  States  intends  to  utilize  cer- 
tain specified  waters,  the  waters  described  in  such  notice  and 
unappropriated  at  the  date  of  the  filing  thereof  shall  not  be 
subject  to  further  appropriation  under  the  laws  of  this  State, 
but  shall  be.  deemed  to  have  been  appropriated  by  the  United 
States ;  provided,  that  within  a  period  of  three  years  from  the 
date  of  filing  such  notice  the  proper  officer  of  the  United  States 
shall  file  final  plans  of  the  proposed  works  in  the  office  of  the 
State  Engineer  for  his  information ;  and  provided  further,  that 
within  four  years  from  the  date  of  such  notice  the  United 
States  shall  authorize  the  construction  of  such  proposed  work. 
No  adverse  claims  to  the  use  of  the  water  required  in  con- 
nection with  such  plans  shall  be  acquired  under  the  laws  of 
this  State  except  as  for  such  amount  of  said  waters  described 
in  such  notice  as  may  be  formally  released  in  writing  by  an 
officer  of  the  United  States  thereunto  duly  authorized  which 
release  shall  also  be  filed  in  the  office  of  the  State  Engineer. 
In  case  of  failure  of  the  United  States  to  file  such  plans  or 
authorized  construction  of  such  works  within  the  respective 
periods  herein  provided,  the  waters  specified  in  such  notices, 
filed  by  the  United  States,  shall  become  subject  to  appropria- 
tion by  other  parties.  Notice  of  the  withdrawal  herein  men- 
tioned shall  be  published  by  the  State  Engineer  in  a  newspaper 
published  and  of  general  circulation  in  the  stream  system 


WATER  LAWS  OF  THE  STATE  OF  OREGON  71 


affected  thereby,  and  a  like  notice  upon  the  release  of  any 
lands  so  withdrawn,  such  notices  to  be  published  for  a  period 
not  exceeding  thirty  days.  [L.  1905,  c.  228,  p.  401,  §  2.] 

§  6589.  Adjudication  of  Water  Rights. 

In  any  stream  system  where  construction  is  contemplated 
by  the  United  States  under  the  act  of  Congress,  approved 
June  17,  1902,  and  known  as  the  reclamation  act,  the  State 
Engineer  shall  make  a  hydrographic  survey  of  such  stream  sys- 
tem, and  shall  deliver  an  abstract  thereof,  together  with  an 
abstract  of  all  data  necessary  for  the  determination  of  all  rights 
for  the  use  of  the  waters  of  such  system,  to  the  Attorney  Gen- 
eral of  the  State.  The  Attorney  General,  together  with  the  dis- 
trict attorneys  of  the  district  affected  by  such  stream  system, 
shall,  at  the  request  of  the  Secretary  of  the  Interior,  enter  suit 
on  behalf  of  the  State  of  Oregon,  in  the  name  of  the  State,  for 
the  determination  of  all  rights  for  the  use  of  such  water,  and 
shall  diligently  prosecute  the  same  to  a  final  adjudication.  [L. 
1905,  c.  228,  p.  402,  §  3.] 

§  6590.  Hydrographic    and   Topographic    Surveys    and    Co-Operation 
With  the  United  States  Government. 

The  State  Engineer  shall  make  hydrographic  and  topo- 
graphic surveys  and  investigations  of  each  stream  system  and 
source  of  water  supply  in  the  State,  beginning  with  tho^e 
most  used,  obtaining  and  recording  all  available  data  pertain- 
ing to  the  water  supDly  of  this  State.  He  is  hereby  authorized 
to  co-operate  with  the  agencies  of  the  United  States  govern- 
ment engaged  in  similar  surveys  and  investigations,  and  in  the 
construction  of  works  for  the  development  and  use  of  the  water 
supply  of  this  State,  expending  for  such  purposes  any  money 
available  for  the  work  of  his  office.  For  the  purpose  of  mak- 
ing hydrographic  and  topographic  surveys,  there  is  hereby 
appropriated  out  of  any  moneys  in  the  treasury  not  otherwise 
appropriated  the  sum  of  $2,500  annually  for  such  hydrographic 
and  $2,500  annually  for  such  topographic  surveys,  such  appro- 
priations, however,  being  contingent  upon  the  United  States 
government  making  a  like  apportionment  for  such  purposes 
to  be  expended  within  the  State.  [L.  1905,  c.  228,  p.  404,  §  10.] 

§  6591,  Disposition  of  State  Lands. 

No  lands  belonging  to  the  State,  within  the  areas  to  be 
irrigated  from  work  constructed  or  controlled  by  the  United 
States,  or  its  duly  authorized  agents,  shall  hereafter  be  sold 
except  in  conformity  with  the  classification  of  farm  units  by 
the  United  States,  and  the  title  of  such  land  shall  not  pass 
from  the  State  until  the  applicant  therefor  shall  have  fully 


72  WATER  LAWS  OF  THE  STATE  OF  OREGON 

complied  with  the  provisions  of  the  laws  of  the  United  States 
and  the  regulations  thereunder  concerning  the  acquisition  of 
the  right  to  use  water  from  such  works,  and  shall  produce  the 
evidence  thereof  duly  issued.  After  the  withdrawal  of  lands 
by  the  United  States  for  any  irrigation  project,  no  application 
for  the  purchase  of  State  lands  within  the  limits  of  such  with- 
drawal shall  be  accepted,  except  under  the  conditions  pre- 
scribed under  that  section.  Any  State  lands  needed  by  the 
United  States  for  irrigation  works  shall  be  conveyed  to  the 
United  States  without  charge.  [L.  1905,  c.  228,  p.  405,  §  11.] 

§  6592.  Eight  of  Way  Over  State  Lands. 

There  is  hereby  granted  over  all  the  unimproved  lands  now 
or  hereafter  belonging  to  the  State  the  necessary  right  of  way 
for  ditches,  canals,  and  reservoir  sites  for  irrigation  purposes 
constructed  by  authority  of  the  United  States  or  otherwise. 
All  conveyances  of  State  land  hereafter  made  shall  contain  a 
reservation  of  such  right  of  way  and  reservoir  sites.  [L.  1905, 
c.  228,  p.  405,  §  12.] 

§  6593.  Act  Not  to  Rescind  Cession  to  United  States. 

But  nothing  in  this  act  shall  be  construed  as  rescinding  the 
cession  by  the  State  to  the  United  States  of  lands,  as  provided 
in  the  act  known  as  House  Bill  No.  1,  passed  by  the  twenty- 
third  regular  session  of  the  Oregon  legislature.  [L.  1905, 
c.  228,  p.  406,  §  14.] 

(h)  TRAILS  AND  WATER  COURSES. 

§  6477.  Procedure  to  Establish  Trails. 

When  the  citizens  of  any  county  within  this  State  shall 
determine  to  have  a  trail,  or  use  a  water  course,  slough,  or 
stream  as  such  road  or  trail,  the  same  shall  be  done  by  petition 
to  the  county  court  of  the  county  where  such  trail,  water 
course,  slough,  or  stream  is  situated,  said  petition  to  represent 
a  majority  of  the  freeholders  of  the  road  district  desiring  said 
trails  or  water  courses  as  such  as  aforesaid.  [L.  1876,  p.  10, 
§1.] 

§  6448.  Location  of  Viewers. 

It  shall  be  the  duty  of  the  said  county  court,  if  approving 
said  petition,  to  appoint  three  competent  men  as  viewers,  who 
shall  meet  on  a  given  day  at  one  of  the  points  .of  terminus  of 
said  trail  or  water  course,  and  proceed  without  delay  to  view 
out  and  locate,  by  legible  tree  marks,  if  a  trail,  the  most  eligible 
and  best  route  from  point  to  point  in  said  petition;  if  a  trail 
the  same  not  to  be  less  than  six  feet  wide.  [L.  1876,  p.  10,  §  2.] 


WATER  LAWS  OP  THE  STATE  OF  OREGON  73 

§  6449.  Report  by  Viewers. 

After  such  trail  or  water  course  shall  have  been  located  as 
a  public  highway  by  said  viewers,  it  shall  be  their  duty  to  make 
a  report  to  the  county  court  of  the  county  wherein  such  location 
shall  have  been  made,  giving  a  complete  description  of  the 
route  so  located.  [L.  1876,  p.  10,  §  3.] 

§  6450.  Road  Work  Applied  in  Building  Trail. 

The  county  court,  after  a  full  examination  of  said  report, 
if  approved  shall  order  any  supervisor  of  roads  within  the 
proper  district  to  call  out  those  liable  to  work  upon  roads  to  do 
and  perform  such  labor  upon  such  trails  or  water  courses  as  is 
now  done  upon  public  highways,  and  such  tax  shall  not  there- 
after be  required  for  any  other  road  purpose.  [L.  1876,  p.  10, 
§  4.] 

§  6451.  Under  the  Control  of  the  County  Court. 

Such  trails  or  water  courses  shall  be  under  the  control  of 
the  county  court  of  the  counties  in  which  the  same  are  located, 
as  public  highways,  and  continue  to  be  worked  from  year  to 
year  as  roads  or  highways  are  worked.  [L.  1876,  p.  10,  §  5.] 

§  6452.  Law  Not  Applicable  to  County  Roads. 

The  provision  of  this  act  shall  not  apply  to  county  roads. 
[L.  1876,  p.  10,  §  6.] 

(i)  POLLUTION  AND  OBSTRUCTION  OF  STREAMS. 
§  2237.  Polluting  Water  and  Penalty  Therefor. 

Any  person  who  shall  put  any  sewerage,  drainage,  or 
refuse,  or  polluting  matter,  as  either  by  itself  or  in  connection 
with  other  matter  will  corrupt  or  impair  the  quality  of  any 
well,  spring,  brook,  creek,  branch,  or  pond  of  water,  which  is 
used  or  may  be  used  for  domestic  purposes,  shall  be  deemed 
guilty  of  a  misdemeanor.  [L.  1885,  p.  110,  §  !.] 

§  2238.    Animal  Carcass,  Etc.,  Unlawful  to  Place  in  Water  for  Domes- 
tic Use  or  Near  Dwelling. 

If  any  person  shall  put  any  dead  animal  carcass,  or  part 
thereof,  excrement,  putrid,  nauseous,  noisome,  decaying,  dele- 
terious, or  offensive  substance  into,  or  in  any  other  manner 
not  herein  named  befouls,  pollutes,  or  impairs  the  quality  of 
any  spring,  brook,  creek,  branch,  well  or  pond  of  water  which 
is  or  may  be  used  for  domestic  purposes,  or  shall  put  any  such 
dead  animal  carcass,  or  part  thereof,  excrement,  putrid,  nau- 
seous, noisome,  decaying,  deleterious,  or  offensive  substance 
within  one-half  mile  of  any  dwelling  house  or  public  highway 
and  leave  the  same  without  proper  burial,  or  being  in  the 


74  WATER  LAWS  OF  THE  STATE  OF  OREGON 


possession  or  control  of  any  land,  shall  knowingly  permit  or 
suffer  any  such  dead  animal  carcass  or  part  thereof,  .excre- 
ment, putrid,  nauseous,  noisome,  decaying,  deleterious,  or 
offensive  substance  to  remain  without  proper  burial  upon  such 
premises,  within  one-half  mile  of  any  dwelling  house  or  public 
highway,  whereby  the  same  becomes  offensive  to  the  occupants 
of  such  dwelling  or  to  the  traveling  public,  shall  be  deemed 
guilty  of  a  misdemeanor.  [L.  1885,  p.  110,  §  2.] 

§  2239.    Penalty  for  Violating1  Preceding  Provisions,  and  Jurisdiction 

to  Enforce. 

Any  person  violating  the  provisions  of  this  act  shall,  upon 
conviction,  be  fined  not  less  than  $10  nor  more  than  $50,  or  be 
imprisoned  not  less  than  five  days  nor  more  than  twenty-five 
days,  or  by  both  fine  and  imprisonment.  Justices  of  the  peace 
shall  have  jurisdiction  of  offenses  committed  against  the  pro- 
visions of  this  act.  [L.  1885,  p.  110,  §  §  3,  4.] 

§  2240.  Polluting1  Water  Used  for  Domestic  Purposes,  or  to  Which 

Livestock  Have  Access,  Unlawful. 

If  any  person,  or  persons,  shall  put  any  dead  animal's 
carcass,  or  part  thereof,  or  any  excrement,  putrid,  nauseous, 
decaying,  deleterious,  or  offensive  substance,  in  any  well,  or 
into  any  spring,  brook,  or  branch  of  running  water,  of  which 
use  is  made  for  domestic  purposes,  or  to  which  any  cattle, 
horses,  or  other  kind  of  stock  have  access,  every  person  so 
offending  shall,  on  conviction  thereof,  be  fined  in  any  sum  not 
less  than  $3.00  nor  more  than  $50.  [L.  1889,  p.  89,  §  1; 
L.  1891,  p.  98.] 

§  2241.  Polluting  Water  Used   for   Municipal   Supply   of   Adjoining1 
State. 

Any  person  who  shall  place  or  cause  to  be  placed  within  any 
watershed  from  which  any  city  or  municipal  corporation  of 
any  adjoining  state  obtains  its  water  supply,  any  substance 
which  either  by  itself  or  in  connection  with  other  matter  will 
corrupt,  pollute,  or  impair  the  quality  of  said  water  supply, 
or  the  owner  of  any  dead  animal  who  shall  knowingly  leave 
or  cause  to  be  left  the  carcass  or  any  portion  thereof  within 
any  such  watershed  in  such  condition  as  to  in  any  way  corrupt 
or  pollute  such  water  supply,  shall  be  deemed  guilty  of  misde- 
meanor and  upon  conviction  shall  be  punished  by  fine  in  any 
sum  not  exceeding  $500.  [L.  1909,  c.  182,  p.  256.] 

§  2243.  Animal  Carcass,  Unlawful  to  Put  in  River,  or  Elsewhere  to 

Injury  of  Health. 

If  any  person  or  persons  shall  put  any  part  of  the  carcass 
of  any  dead  animal  into  any  river,  creek,  pond,  road,  street, 


WATER  LAWS  OF  THE  STATE  OF  OREGON  75 


alley,  lane,  lot,  field,  meadow,  or  common,  or  if  the  owner  or 
owners  thereof  shall  knowingly  permit  the  same  to  remain 
in  any  of  the  aforesaid  places,  to  the  injury  of  the  health, 
or  to  the  annoyance  of  the  citizens  of  this  State,  or  any  of 
them,  every  person  so  offending  shall,  on  conviction  thereof, 
be  fined  in  a  sum  not  less  than  $2.00  nor  more  than  $25,  and 
every  twenty-four  hours  during  which  said  owner  may  permit 
the  same  to  remain  thereafter  shall  be  deemed  an  additional 
offense  against  the  provisions  of  this  act.  [L.  1889,  p.  89,  §  2.] 

§  2337.    Powder,  Gas,  Lime,  Cocculus  Indicus,  Poison,  Etc. 

(a)  It  shall  be  unlawful  to  explode  or  cause  to  be  exploded 
any  giant  powder,  dynamite,  or  other  explosives  in  any  lake, 
river,  stream,  pond,  bay  or  other  waters  within  the  boundaries 
of  this  State  without  first  obtaining  an  order  permitting  it  to 
be  done  from  the  board  of  county,  commissioners  of  the  county 
in  which  it  is  desired  to  use  the  explosives,  as  hereinafter 
provided. 

(b)  It  shall  be  unlawful  to  place,  or  cast,  or  pass,  or 
allow  to  be  cast,  or  flow,  or  passed,  any  gas,  lime,  cocculus 
indicus,  or  extract  therefrom,  or  any  other  substance  poisonous 
to  fish,  in  any  lake,  river,  stream,  pond,  bay,  or  other  waters 
within  the  boundaries  of  this  State,  without  first  obtaining  an 
order  permitting  it  to  be  done  from  the  board  of  county  com- 
missioners of  the  county  in  which  it  is  desired  to  use  the 
poison,  as  hereinafter  provided. 

(c)  It  shall  be  unlawful  to  take,  or  kill,  or  injure  any  fish 
in  any  lake,  river,  stream,  pond,  bay,  or  other  waters  within 
the  boundaries  of  this  State  by  means  of  giant  powder,  dyna- 
mite, or  other  explosive,  or  by  means  of  lime,  cocculus  indicus, 
or  extract  therefrom,  or  other  poison,  without  first  obtaining 
an  order  of  the  county  commissioners  of  the  county  permitting 
it  to  be  done  as  hereinafter  provided. 

(d)  Having  in  possession   any  trout,   salmon,   or  other 
game  fish  under  circumstances  which  make  it  reasonable  to 
believe  that  they  were  taken  and  killed  by  means  of  lime, 
cocculus  indicus  or  extract  therefrom,  or  other  poison,  or  by 
giant  powder,  or  dynamite,  or  other  explosive,  shall  justify  the 
arrest  of  the  person  or  persons  so  having  the  fish  in  their 
possession;  and  it  shall  then  be  incumbent  upon  such  persons 
to  prove  and  show  that  the  fish  were  taken  and  killed  by 
lawful  means. 

(e)  Every  person  who  aids  or  abets  in  exploding  any 
giant  powder,  dynamite,  or  other  explosive,  or  in  putting  any 
lime,  cocculus  indicus  or  extract  therefrom,  or  other  poison,  in 
any  lake,  river,  stream,  pond,  bay,  or  other  waters  within  the 


76  WATER  LAWS  OF  THE  STATE  OF  OREGON 


boundaries  of  this  State  contrary  to  the  provisions  of  this 
section,  or  who  aids  or  abets  in  taking  or  killing  any  fish  in  this 
State  contrary  to  the  provisions  of  this  section,  or  who  aids  or 
abets  in  taking  or  securing  any  fish  in  this  State  which  he 
knows  or  has  reason  to  believe  have  been  killed  or  injured  con- 
trary to  the  provisions  of  this  section,  shall  be  deemed  guilty 
of  violating  this  section,  and  upon  conviction  shall  be  punished 
as  hereinafter  provided. 

(/)  Whenever,  in  the  course  of  removing  any  obstructions 
in  any  waters  within  this  State,  or  in  constructing  any  founda- 
tions for  dams,  bridges  or  other  structures,  any  person  shall 
desire  to  explode  any  giant  powder,  dynamite,  or  other  explo- 
sive in  any  waters  within  this  State,  before  doing  so  he  shall 
file  a  verified  petition  with  the  county  commissioners  of  the 
county  setting  forth  his  plans  and  objects,  and  when  he  desires 
to  use  the  explosive,  and  What  necessity  there  is  for  using 
explosives.  If  the  county  commissioners  approve  of  the  neces- 
sity of  using  the  explosives  they  may  make  an  order  granting 
the  petitioner  leave  to  use  explosives,  designating  the  place 
or  places  and  the  period  within  which  the  explosives  may  be 
used,  and  prescribing  such  precautions  as  will  save  the  fish 
from  injury.  If  any  such  person  disregards  such  order  he 
shall  be  deemed  to  have  violated  this  section,  and  upon  con- 
viction shall  be  punished  accordingly. 

(g)  Whenever  the  owner  of  any  lake  or  pond  in  this  State 
desires  to  get  rid  of  and  kill  the  fish  known  as  German  carp 
in  said  lake  or  pond,  he  shall  file  a  verified  petition  with  the 
county  commissioners  of  the  county,  stating  in  what  section, 
township,  and  range  the  lake  or  pond  is  situated,  and  with 
what  waters  it  connects,  and  his  reasons  for  wishing  to  kill 
the  fish.  He  shall  truly  and  particularly  state  what  other  kinds' 
of  fish  are  in  the  lake  or  pond.  If  the  county  commissioners 
are  satisfied  that  there  are  no  fish  other  than  German  carp, 
catfish,  suckers,  and  such  like  worthless  fish  in  the  lake  or 
pond,  and  that  the  same  has  no  outlet  whereby  the  poison  can 
escape  into  other  waters,  the  commissioners  shall  make  an 
order  permitting  the  person  to  put  lime  or  other  substance  in 
the  lake  or  pond  for  said  purpose.  If  any  person  use  lime  or 
other  poison  in  any  water  within  the  boundaries  of  this  State, 
without  first  obtaining  such  order,  or  contrary  to  such  order, 
he  shall  be  deemed  to  have  violated  this  section,  and  upon  con- 
viction shall  be  punished  as  hereinafter  provided. 

(h)  Every  person  who  desires  to  obtain  permission  to  use 
explosives,  or  lime,  or  poison,  under  provision  of  this  section, 
shall  serve  upon  the  fish  commissioner,  or  State  Game  and 
Forestry  Warden  of  this  State,  a  certified  copy  of  his  petition, 


WATER  LAWS  OF  THE  STATE  OP  OREGON  77 

not  less  than  ten  days  before  the  hearing  of  the  petition.  Such 
service  may  be  made  personally  upon  the  fish  commissioner  or 
State  Game  and  Forestry  Warden,  or  by  registered  mail,  and 
the  proof  of  service  shall  be  filed  with  the  commissioner.  The 
fish  commissioner  or  State  Game  and  Forestry  Warden  or 
any  person  interested  may  oppose  the  granting  of  the  order, 
and  the  same  may  be  reviewed. 

(i)  Any  person  or  persons  violating  any  of  the  provisions 
of  this  section  shall  be  tried  in  the  circuit  court  of  the  county 
wherein  such  offense  shall  have  been  committed,  and  upon 
conviction  shall  be  both  fined  and  imprisoned.  If  it  is  his  first 
conviction  for  violating  the  provisions  of  said  section  he  shall 
be  fined  not  less  than  $200,  or  by  imprisonment  in  the  county 
jail  not  less  than  thirty  days  nor  more  than  one  year,  or  by 
both  such  fine  and  imprisonment.  If  he  is  convicted  of  violat- 
ing said  section  a  second  time,  or  oftener  he  shall  then  be 
fined  not  less  than  $1,000  nor  more  than  $3,000,  and  shall  be 
imprisoned  in  the  penitentiary  not  less  than  one  year  nor 
more  than  three  years  for  each  repeated  offense.  [L.  1909, 
c.  232,  p.  406,  §  50.] 

§  2338.  Sawdust,  Planer  Shavings,  Etc. 

It  shall  be  unlawful  for  any  proprietor  or  operator  of  any 
sawmill  or  other  lumber  manufacturing  concern,  or  of  any 
pulp  mill,  or  wood  saw,  other  wood-sawing  or  manufacturing 
concern,  or  tannery,  in  this  State  or  any  employee  thereof, 
or  any  other  person,  to  cast  sawdust,  planer  shavings,  wood 
pulp,  or  other  lumber  waste,  or  suffer  or  permit  such  sawdust, 
shavings,  other  lumber  waste  or  wastes  from  tannery,  to  be 
thrown  or  discharged  in  any  manner  into  any  waters  flowing 
into  the  Pacific  Ocean  within  this  State,  or  the  Columbia  River, 
or  other  waters  of  this  State,  or  to  deposit  the  same  where  high 
waters  will  take  the  same  into  the  Columbia  River,  or  any 
other  waters  of  the  State.  Any  person  or  persons,  firm, 
or  corporation  violating  any  of  the  provisions  of  this  section 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  fined  in  a  sum  not  less  than  $50,  nor  more  than 
$500,  and  costs  for  each  and  every  offense.  [L.  1909,  c.  232, 
p.  406,  §  51.] 

§  5245.     Obstructions  in  Rogue  River  Unlawful — Exception. 

It  shall  be  unlawful  for  any  person  or  persons,  firm  or  cor- 
poration, except  for  securing  salmon  for  propagation  purposes, 
to  place  any  obstruction  in  Rogue  River,  which  said  obstruc- 
tions will  in  any  way  or  at  all  or  in  any  wise  obstruct  or  inter- 
fere with  the  progress  of  the  salmon  in  going  up  or  down 
said  river,  and  any  person  violating  this  section  shall  be  deemed 


78  WATER  LAWS  OF  THE  STATE  OF  OREGON 

guilty  of  a  misdemeanor,  and,  upon  conviction  thereof,  shall 
be  fined  the  sum  of  not  less  than  $50  nor  more  than  $200,  or 
be  imprisoned  in  the  county  jail  not  less  than  thirty  days  nor 
more  than  four  months  or  by  both  fine  and  imprisnoment  in 
the  discretion  of  the  court.  [L.  1907,  c.  177,  p.  334,  §  7.] 

§  5269.  Placing  Deleterious  Matter  or  Explosives  in  Waters  of  State 
Unlawful . 

It  shall  be  unlawful  for  any  person  or  persons  to  throw  or 
cast,  or  pass,  or  cause  or  permit  to  be  thrown,  or  cast,  or 
passed,  in  any  waters  of  the  State  in  which  salmon  fish  of 
any  kind  or  other  food  fishes  are  wont  to  be,  any  lime,  drug, 
powder,  medicated  bait,  gas,  or  cocculus  indicus,  or  any  other 
substance  deleterious  to  fish,  or  to  explode  or  cause  to  be 
exploded  in  any  waters  of  this  State  any  powder,  hercules 
powder,  giant  powder,  dynamite,  nitroglycerine,  or  any  explo- 
sive substance  whatever,  for  the  purpose  of  catching,  killing, 
or  destroying  any  salmon  or  any  food  fish.  [L.  1901,  p.  336, 
§  22;  B.  &  C.  §4077.] 

§  5270.  Depositing  in  Streams  Substances  Injurious  to  Salmon  Pro- 
hibited. 

It  shall  be  unlawful  for  any  person  to  place  in  any  stream  of 
this  State  where  salmon  run  or  exist  within  the  distance  from 
any  dam,  fishway  or  object  in  which  the  taking  of  salmon  is 
prohibited  by  law;  any  blood  or  offal  of  salmon  or  fish,  or  any 
other  substance  or  matter  or  contrivance  that  will  frighten 
or  drive  salmon,  or  with  intent  to  drive  or  frighten  from  or 
out  of  that  part  of  the  waters  of  any  stream  in  which  it  is 
unlawful  to  fish  for  or  take  the  same.  [L.  1905,  c.  30,  p.  94, 
§  1-1 

§  5288.  Obstruction  in  Fish  Stream  Prohibited. 

It  shall  be  unlawful  for  any  person  to  construct  any  mill- 
dam  or  artificial  obstruction  across  any  stream  in  this  State 
frequented  by  salmon  or  trout,  or  to  maintain  any  such  mill- 
dam  or  obstruction  heretofore  erected  without  providing  a 
passageway  for  such  fish  over  such  obstruction,  such  passage- 
way for  fish  to  be  constructed  as  near  the  main  channel  as 
may  be  practicable.  It  shall  be  the  duty  of  the  fish  warden 
to  examine  from  time  to  time  all  milldams  and  artificial 
obstructions  to  all  rivers  and  streams  in  the  State,  frequented 
by  salmon  or  other  migratory  fish,  and  if  in  his  opinion  there 
is  not  a  free  passage  for  fish  over  any  milldam  or  artificial 
obstruction,  to  notify  the  owner  or  occupant  thereof  to  pro- 
vide the  same  within  a  reasonable  time  with  a  durable  and 
efficient  fishway,  of  such  form  and  capacity  and  in  such 


WATER  LAWS  OP  THE  STATE  OF  OREGON  79 

location  as  shall  be  determined  by  the  fish  warden.  If  such 
fishway  is  not  completed  to  the  satisfaction  of  said  fish 
warden  within  the  time  specified,  the  owners  or  occupants  of 
such  milldam  or  artificial  obstruction  shall  be  deemed  guilty 
of  a  misdemeanor,  and  on  conviction  shall  be  punished  as  in 
this  act  hereinafter  provided.  It  shall  be  incumbent  upon 
the  owners  and  operators  of  all  milldams  or  artificial  obstruc- 
tions, where  the  fish  warden  requires  such  fishway  to  be 
provided,  to  keep  the  same  in  repair  and  open  and  free  from 
obstruction  to  the  passage  of  fish  at  all  times,  and  any  owner 
or  operator  of  any  dam  or  artificial  obstruction  who  neglects 
or  refuses  to  keep  such  fishway  in  repair  and  open  and  free 
from  obstruction  to  the  passage  of  fish  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  shall  be  punished  as  in 
this  act  hereinafter  provided;  and  the  continuance  from  day 
to  day  of  the  neglect  or  refusal  after  notification  in  writing 
by  the  fish  warden,  shall  constitute  a  separate  offense;  and 
it  shall  be  unlawful  for  any  person  to  willfully  or  knowingly 
destroy,  injure  or  abstract  from  such  fishway,  or  to  take  or 
catch  any  salmon  or  other  migratory  fish  within  six  hundred 
feet  below  any  fishway;  provided,  however,  that  fishing  with 
hook  and  line  only  shall  be  permitted  two  hundred  feet  below 
any  fishway.  [L.  1901,  p.  337,  §  24;  L.  1911,  c.  192,  §  1.] 

Pollution  of  North  TJmpqua  River. 

Section  1.  Any  person  or  persons,  who  shall  put  any  sew- 
age, drainage,  refuse,  or  polluting  matter,  or  any  dead  animal 
carcass,  or  part  thereof,  excrement,  putrid,  nauseous,  decay- 
ing, deleterious  or  offensive  substance,  which  either  by  itself 
or  in  connection  with  other  matter,  will  corrupt  or  impair  the 
quality  of  the  water  for  domestic  or  municipal  purposes,  into 
the  water  of  the  North  Umpqua  River,  or  the  tributaries 
thereof,  above  the  Winchester  Power  Dam,  in  Douglas  County, 
Oregon,  said  dam  being  located  between  the  points  to-wit: 
Where  said  river  is  crossed  by  the  Oregon  and  California  Rail- 
road and  the  county  bridge  spanning  said  stream  1500  feet 
more  or  less  east  of  said  railroad  crossing,  or  allow  any  such 
substance  to  escape  into,  or  place  any  such  substance  in  such 
position  that  it  shall  escape  or  be  carried  into  said  waters, 
or  in  any  other  manner  not  herein  named,  shall  befoul,  pollute, 
or  impair  the  qualities  of  such  waters  for  domestic  or  munici- 
pal purposes,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof,  shall  be  punished  as  hereinafter  pro- 
vided. 

Section  2.  Any  company,  corporation,  or  private  indi- 
vidual violating  any  of  the  provisions  of  this  act  shall,  upon 
conviction  thereof,  be  fined  in  the  sum  of  not  less  than  $10.00 


80  WATER  LAWS  OF  THE  STATE  OF  OREGON 

nor  more  than  $100  or  imprisoned  in  the  county  jail  not  less 
than  five  nor  more  than  fifty  days,  or  both  such  fine  or  im- 
prisonment, in  the  discretion  of  the  court. 

Section  3.  Courts  of  the  justice  of  the  peace  shall  have 
concurrent  jurisdiction  with  the  circuit  courts  of  this  State 
in  the  trial  of  all  proceedings  under  this  act,  and  it  shall  be 
the  duty  of  the  county  health  officer  of  Douglas  County,  Ore- 
gon, to  enforce  the  provisions  of  this  act.  [L.  1911,  c.  8,  p.  27.] 

Pollution  of  Deschutes  River. 

Section  1.  It  shall  be  unlawful  for  any  person  or  persons, 
company,  or  association  or  corporation  to  put  or  deposit  in 
the  Deschutes  River  in  the  State  of  Oregon,  or  any  tributary 
thereof,  or  artificial  canal  or  ditch,  in  which  the  waters  of 
said  Deschutes  River  runs,  any  sewage,  refuse,  waste  or  pol- 
luting matter,  or  any  dead  animal  carcass  or  part  thereof,  or 
any  matter  which  either  by  itself,  or  in  connection  with  any 
other  substance,  will  corrupt  or  impair  the  quality  of  the 
water  of  said  river  for  domestic  or  municipal  purposes,  or  to 
place  any  such  substance  in  such  position  that  it  shall  escape 
or  be  carried  into  said  waters  by  the  action  of  the  elements  or 
otherwise. 

Section  2.  Any  person  or  persons,  company,  association  or 
corporation  violating  the  provisions  of  this  act  shall,  upon 
conviction  thereof,  be  punished  by  a  fine  of  not  less  than  $25, 
nor  more  than  $500,  or  by  imprisonment  in  the  county  jail  not 
less  than  ten  days  nor  more  than  three  months,  or  by  both  such 
fine  and  imprisonment. 

Section  3.  Whereas,  the  waters  of  the  Deschutes  River 
and  of  the  canals  leading  therefrom,  are  becoming  so  polluted 
by  the  deposits  of  refuse  matter  that  the  waters  of  irrigation 
ditches  leading  therefrom,  are  foul,  and  deleterious  to  the 
health  of  the  people  using  said  water,  and  the  waters  from 
said  river  have  been  rendered  unwholesome  for  domestic  pur- 
poses, this  act,  in  the  judgment  of  the  legislature,  is  necessary 
for  the  immediate  preservation  of  the  peace,  health  and  safety 
of  the  people,  and  an  emergency  is  thereby  declared  to  exist 
and  this  act  is  excepted  from  the  powers  of  the  referendum 
and  shall  become  of  full  force  and  effect  from  and  after  its 
passage  and  approval  by  the  Governor.  [L.  1911,  c.  45,  p.  66.] 

(/)     FUNDS. 
§  6602.     Appropriations. 

There  is  hereby  appropriated  out  of  the  moneys  in  the 
general  fund  of  the  State  Treasury,  not  otherwise  appropri- 
ated, the  sum  of  $5,000  annually,  or  so  much  thereof  as  may 


WATER  LAWS  OF  THE  STATE  OF  OREGON  81 

be  necessary  for  the  salary  and  expenses  of  the  State  Engineer 
and  the  services  of  assistants,  and  expenses  of  the  office  and 
department  of  the  State  Engineer.  [L.  1905,  c.  228,  p.  405, 
§  13.] 

See  also   §  6607. 

Appropriations, 

There  is  hereby  appropriated  out  of  any  moneys  in  the 
general  fund  of  the  State  Treasury,  not  otherwise  appropri- 
ated, the  sum  of  $10,000  annually,  or  so  much  thereof  as  may 
be  necessary  for  the  payment  of  the  salaries  and  expenses  in- 
curred by  the  Board  of  Control  under  the  provisions  of  Chapter 
216,  General  Laws  of  Oregon  for  1909,  and  acts  amendatory 
thereof  which  appropriation  is  in  addition  to  the  $10,000 
annual  appropriation  heretofore  made  in  Section  6607,  of 
Lord's  Oregon  Laws.  All  salaries  and  expenses  incurred  and 
material  and  supplies  furnished  under  the  provisions  of  thisi 
act  shall  be  paid  at  the  same  time  in  the  same  manner  as 
those  of  other  officers  of  the  State.  [L.  1913,  c.  86,  p.  140,  §  6.] 

Adjudication  Survey  Fund. 

Section  1.  There  is  hereby  appropriated  out  of  any 
moneys  in  the  general  fund  of  the  State  Treasury,  not  other- 
wise aDpropriated  the  sum  of  $6,900  annually,  or  so  much 
thereof  as  may  be  necessary  for  the  payment  of  salaries  and 
expenses  incurred  by  the  State  Engineer  in  making  surveys  and 
investigations  in  connection  with  water  right  determinations 
by  the  Board  of  Control,  and  the  Secretary  of  State  is  hereby 
authorized  and  directed  to  audit  all  duly  approved  claims  which 
have  been  incurred  in  pursuance  of  law  and  the  foregoing 
appropriation,  and  draw  his  warrant  on  the  State  Treasury  in 
payment  thereof  as  provided  by  Section  2624  of  Lord's  Oregon 
Laws,  as  amended  by  the  Legislative  Assembly  of  1911. 

Section  2.  The  State  Engineer  shall  receive  a  salary  of 
$3,000  per  annum,  and  actual  necessary  traveling  expenses 
while  away  from  his  office  in  the  discharge  of  official  duties, 
payable  as  other  State  officers  are  paid. 

Section  3.  All  acts  or  parts  of  acts  in  conflict  or  incon- 
sistent with  the  provisions  of  this  act,  are  hereby  repealed. 
[L.  1911,  c.  239,  p.  422.] 

/ 

$20,000  Co-Operative  Fund. 

Section  1.  In  order  to  complete  the  topographic  map  of 
the  State  of  Oregon,  and  for  the  purpose  of  making  more  ex- 
tensive stream  measurements,  and  otherwise  investigating  and 
determining  the  water  supply  of  the  State,  there  is  hereby 


82  WATER  LAWS  OF  THE  STATE  OP  OREGON 

appropriated  out  of  any  funds  in  the  State  Treasury  not  other- 
wise appropriated,  and  in  addition  to  the  five  thousand  dollars 
($5,000)  appropriated  in  Section  10,  Chapter  228,  Session 
Laws  for  1905,  the  sum  of  twenty  thousand  dollars  ($20,000) 
annually  for  co-operation  with  those  branches  of  the  United 
States  Geological  Survey  engaged  in  this  work.  This  appro- 
priation, however,  shall  be  contingent  upon,  and  not  become 
available  unless  the  United  States  government  apportion  an 
equal  amount  to  be  expended  for  similar  purpose  within  the 
State.  The  State  Engineer  is  hereby  authorized  and  directed 
to  enter  into  such  agreements  with  the  Director  of  the  United 
States  Geological  Survey  as  will  insure  that  the  said  surveys 
and  investigations  be  carried  on  in  the  most  economical  man- 
ner, and  that  the  maps  and  data  be  available  for  the  use  of 
the  public  as  quickly  as  possible.  The  Secretary  of  State  is 
hereby  authorized  and  directed  to  draw  warrants  from  time 
to  time  as  provided  by  Section  2524  of  Lord's  Oregon  Laws  as 
amended  by  the  Legislative  Assembly  in  general  session  for  the 
year  1911  upon  properly  verified  vouchers,  approved  by  the 
State  Engineer,  and  the  State  Treasurer  is  hereby  authorized 
and  directed  to  pay  such  warrants. 

Section  2.  In  order  to  carry  out  the  purposes  of  this  act, 
all  persons  employed  hereunder  are  authorized  to  enter  and 
cross  all  lands  within  the  State;  provided,  that  in  so  doing  no 
damage  is  done  to  private  property.  [L.  1911,  c.  71,  p.  110.] 

Survey  Fund. 

Section  1.  That  all  fees  paid  into  the  State  Treasurer 
[treasury]  as  license  fees  which  have  been  collected,  as  pro- 
vided by  law,  from  claimants  to  the  use  of  water  for  power 
purposes,  where  the  right  was  initiated  prior  to  the  22nd  day 
of  May,  1909,  shall  be  credited  by  the  State  Treasurer  to  the 
Survey  Fund,  which  fund  is  hereby  created.  Such  fund  shall 
be  a  continuing  fund  in  the  hands  of  the  State  Treasurer,  to  be 
expended  under  the  direction  of  the  State  Engineer  for  the 
purpose  of  securing  data  necessary  to  encourage  the  develop- 
ment and  use  of  the  water  resources  of  the  State,  and  the 
State  Engineer  is  hereby  authorized  and  directed  to  establish 
gauging  stations  at  suitable  points  on  the  various  streams  of 
the  State  to  determine  the  daily  and  seasonal  fluctuations  in 
the  flow  of  the  water ;  to  make  surveys  and  profiles  to  deter- 
mine the  fall  of  streams  suitable  for  power  development;  and 
to  prepare  topographic  maps  of  the  territory  adjacent  to  the 
private  streams  of  the  State,  so  that  the  availability  of  water 
for  power,  irrigation  or  other  beneficial  uses,  may  be  deter- 
mined and  made  known  to  the  public.  All  such  maps  and 
information  shall  be  made  a  matter  of  record  in  the  office  of 


WATER  LAWS  OF  THE  STATE  OF  OREGON  83 


the  State  Engineer,  and  he  is  hereby  directed  to  publish  a 
summary  of  all  such  information  in  the  most  practical  and 
economical  manner  for  presentation  to  the  public.  The  State 
Engineer  is  hereby  authorized  and  directed  to  enter  into  such 
agreements  and  contracts  as  will  insure  the  said  surveys  and 
investigations  being  carried  on  in  the  most  economical  manner, 
and  that  the  maps  and  data  may  be  made  available  to  the  use 
of  the  public  as  quickly  as  possible.  The  State  Engineer  is 
hereby  authorized-  to  employ  assistants  and  to  purchase 
materials  and  supplies  necessary  in  carrying  out  the  provi- 
sions of  this  act.  All  salaries  and  expenses  incurred  shall  be 
paid  upon  properly  approved  and  audited  vouchers  from  the 
Survey  Fund,  to  be  paid  at  the  same  time  and  in  the  same 
manner  as  State  officers  are  paid. 

Section  2.  In  order  to  carry  out  the  purpose  of  this  act, 
all  persons  employed  hereunder  are  authorized  to  enter  and 
cross  all  lands  within  the  State ;  provided,  that  in  so  doing,  no 
unnecessary  damage  is  done  to  private  property.  [L.  1911, 
c.  237,  p.  419.] 

$50,000  Co-Operative  Survey  Fund. 

Section  1.  In  order  that  the  natural  resources  of  the 
State  of  Oregon  in  land,  water  and  power  may  be  utilized  to 
the  highest  advantage  of  the  people,  complete  co-operation 
between  the  State  and  federal  authorities  in  controlling,  inves- 
tigating and  developing  these  resources  in  the  interest  of  the 
people  of  the  State  is  essential ;  therefore,  the  State  Engineer 
is  hereby  authorized,  on  behalf  of  the  State  of  Oregon,  to  enter 
into  such  contract  or  agreement  with  any  federal  department 
or  bureau  having  jurisdiction  in  such  matters  for  the  execu- 
tion of  such  surveys  and  investigations  and  the  preparation 
of  such  plans,  specifications  and  estimates  or  other  data  by 
co-operation  between  the  State  and  such  federal  department 
or  bureau  as  will,  in  the  judgment  of  the  State  Engineer,  ap- 
proved by  the  Governor,  be  best  suited  to  accomplish  the 
purposes  of  this  act;  provided,  that  in  no  case  shall  the  pro- 
portion of  expense  to  be  borne  by  the  State  of  Oregon  exceed 
the  proportion  to  be  borne  by  the  other  party  or  parties  to 
such  contract  or  agreement. 

Section  2.  As  soon  as  practicable  after  the  completion  of 
such  surveys  and  investigations',  the  State  Engineer  shall  pre- 
pare or  cause  to  be  prepared  a  report  setting  forth  the  plans, 
specifications  and  estimated  cost  of  construction,  maintenance 
and  operation  of  such  projects,  together  with  any  other  infor- 
mation tending  to  show  the  feasibility  of  the  same,  and  may 
in  his  discretion  have  such  report  printed  in  pamphlet  form 
and  distributed  to  those  interested.  Copies  of  all  completed 


84  WATER  LAWS  OF  THE  STATE  OF  OREGON 


maps,  plans,  specifications,  estimates  and  reports  secured  or 
prepared  in  connection  with  any  such  investigation  shall  be 
kept  on  file  in  the  office  of  the  State  Engineer  at  all  times, 
and  shall  be  open  for  public  inspection  during  business  hours. 
Section  3.  The  State  Engineer,  on  behalf  of  the  State,  is 
hereby  authorized  and  required  to  withdraw  and  withhold 
from  appropriation  any  unappropriated  water  which  may  be 
required  for  project  under  investigation  or  to  be  investigated 
under  the  provisions  of  this  act.  If  the  project  is  found  to  be 
feasible,  he  shall  withhold  the  same  from  appropriation  until 
the  money  expended  in  the  investigation  of  such  project  shall 
be  repaid  to  the  co-operating  parties  in  proportion  to  the 
amount  contributed  by  each.  No  permit  to  appropriate  water 
which  may  be  in  conflict  with  any  such  project  under  investi- 
gation shall  be  approved  by  the  State  Engineer,  nor  shall  any 
assignment  of  plans  and  information  or  any  part  thereof  be 
made  except  upon  consideration  and  other  (order)  by  the 
State  Water  Board  after  full  hearing  of  all  interested  par- 
ties. 

Section  4.  As  the  purposes  of  this  act  are  to  secure  the 
most  immediate,  as  well  as  the  most  beneficial,  ultimate  use 
of  the  available  waters  for  any  certain  project,  it  is  assumed 
that  the  State  Engineer  will,  as  occasion  may  require,  and  he 
is  hereby  authorized,  to  grant  permits,  and  arrange  the  details 
so  that  minor  portions -of  the  project  may  be  segregated  and 
constructed  at  any  time ;  provided,  however,  that  the  segrega- 
tion and  development  of  such  minor  part  or  parts,  shall  not 
interfere  to  any  serious  extent  with  the  handling  of  or  com- 
pletion of  the  balance  of  the  project. 

Section  5.  The  intent  of  this  act,  as  outlined  in  Section  2, 
is  to  have  on  file  ready  and  available,  such  detailed  surveys 
and  information  as  will  not  only  permit,  but  that  will  tend  to 
induce  the  beneficial  use  of  water  by  private  persons,  irriga- 
tion districts,  corporations,  or  possibly  by  the  State  or  National 
government. 

Section  6.  There  is  hereby  appropriated  out  of  any  money 
in  the  general  fund  of  the  State  Treasury,  the  sum  of  $50,000 
to  carry  out  the  provisions  of  this  act  to  be  expended  on 
vouchers  approved  by  the  State  Engineer  in  the  same  manner 
as  the  salaries  of  State  officials  are  paid.  This  appropriation 
shall  constitute  a  revolving  fund  in  the  hands  of  the  State 
Treasurer  for  the  investigation  of  other  projects  as  herein 
provided,  and  upon  any  moneys  being  returned  to  the  State 
Engineer,  they  shall  be  promptly  turned  over  to  the  State 
Treasurer  and  again  become  a  part  of  this  fund.  [Chap.  87, 
L.  1913.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  85 


Columbia  River  Power  Project. 

Section  1.  In  order  that  the  public  interest  in  certain  un- 
developed water  power  may  be  protected,  and  that  detailed 
information  as  to  cost  of  developing,  transmitting  and  dis- 
tributing such  power  in  comparison  with  the  cost  of  producing 
power  from  other  agencies  may  be  definitely  known  as  a 
basis  for  the  adoption  of  some  comprehensive  policy  with  ref- 
erence to  the  development  of  our  water  power  resources,  the 
legislative  committee  to  consist  of  two  members  of  the  Senate 
to  be  appointed  by  the  President  and  two  members  of  the 
House  to  be  appointed  by  the  Speaker,  who  when  appointed, 
together  with  the  State  Engineer,  are  hereby  authorized,  on 
behalf  of  the  State  of  Oregon,  to  enter  into  such  contracts  or 
agreements  with  any  officer  or  agent  of  the  State  of  Wash- 
ington as  may  be  found  desirable  to  more  economically  carry 
out  the  provisions  of  this  act.  Such  committee  is  also  author- 
ized to  enter  into  contract  with  any  federal  department  or 
bureau,  if  found  desirable  to  more  economically  or  efficiently 
carry  out  the  provisions  of  this  act. 

Section  2.  It  shall  be  the  duty  of  the  committee  named  in 
Section  1  to  prepare  detailed  plans,  specifications  and  esti- 
mates of  cost  for  the  maximum  economical  development  of 
water  power  in  the  Columbia  River,  near  The  Dalles,  at  what 
is  known  as  Five  Mile  Rapids'.  All  available  information  relat- 
ing to  the  project  shall  be  collected  and  carefully  checked  as 
to  its  accuracy,  sufficient  borings  shall  be  made  at  the  proposed 
dam  site  and  along  the  canal  to  ascertain  the  character  of 
foundations,  and  detailed  plans  shall  be  prepared  as  a  basis  for 
estimating  the  cost.  The  committee  shall  prepare  detailed 
estimates  of  cost,  under  certain  assumed  conditions,  of  trans- 
mitting such  power  to  various  points  in  Oregon  and  Washing- 
ton, including  cost  of  distribution  to  consumers.  The  commit- 
tee shall  also  estimate  the  cost  of  producing  power  from  other 
sources  than  water  power,  in  order  that  the  saving  in  cost,  if 
any,  may  be  apparent,  and  shall  gather  such  other  facts  and 
information  as  may  be  of  value  to  the  public  in  the  framing  of 
some  comprehensive  waterpower  policy. 

Section  3.  As  soon  as  practicable  after  the  completion  of 
such  surveys  and  investigations  the  committe  shall  prepare,  or 
cause  to  be  prepared,  a  report,  setting  forth  the  plans,  specifi- 
cations and  estimated  cost  of  construction,  maintenance  and 
operation  of  such  projects,  together  with  any  other  information 
tending  to  show  the  feasibility  of  the  same,  and  may,  in  its 
discretion,  have  such  report  printed  in  pamphlet  form  for  gra- 
tuitous distribution  to  those  interested.  Copies  of  all  completed 
maps,  plans,  specifications,  estimates  and  reports  secured  or 


Sig.   7 


86  WATER  LAWS  OF  THE  STATE  OP  OREGON 

prepared  in  connection  with  any  such  investigation  shall  be 
kept  on  file  in  the  office  of  the  committee  at  all  times  and  shall 
be  open  for  public  inspection  during  business  hours. 

Section  4.  There  is  hereby  appropriated  out  of  any  money 
in  the  general  fund  of  the  State  treasury  the  sum  of  $15,000 
to  carry  out  the  provisions  of  this  act,  which  sum  is  to  be 
expended  on  vouchers  approved  by  the  committee  in  the  same 
manner  as  salaries  of  State  officials  are  paid.  The  committee 
is  hereby  authorized  to  employ  assistance  and  to  purchase 
material  and  supplies  necessary  in  carrying  out  the  provisions 
of  this  act.  [L.  1913,  c.  374,  p.  764.] 

Preliminary    report    on    this    project  able    eight    months    in    the   year.      The 

was    prepared    by    the    State    Engineer,  tentative   estimate   of   cost   is   given   as 

assisted    by    L.    F.    Harza    and    V.    H.  $23,760,000,     and    the    annual    cost    of 

Reineking.     This  report  was  published  delivering    low     tension     power    about 

as  Bulletin   No.   3,   of  the  office  of   the  $7.00     per    horse     power.       The     above 

State  Engineer,  under  date  of  January,  appropriation    is    for    the    purpose    of 

1J»12.       From    this    report,     it    appears  making    a    more    detailed    investigation 

that  300,000  horse  power  can  be  devel-  and    report    undrr    the   direction   of   the 

oped  in   the  vicinity  of  Five-Mile  Rap-  committee   named    in    the   law. 
ids,    with    536,000    horse    power    avail- 


WATER  LAWS  OF  THE  STATE  OF   OREGON  87 

PART  III. 

IRRIGATION,  DRAINAGE,  DIKING,  AND  IM- 
PROVEMENT DISTRICTS 

(a)  IRRIGATION  DISTRICTS. 

§  6167.     Irrigation  Districts  May  Be  Organized. 

Whenever  fifty,  or  a  majority  of  the  holders  of  title  to 
lands  susceptible  of  irrigation  from  a  common  source  or  com- 
bined sources  and  by  the  same  system  or  combined  systems  of 
works  desire  to  provide  for  the  irrigation  of  the  same,  they 
may  propose  the  organization  of  an  irrigation  district,  under 
the  provisions  of  this  act,  and  when  so  organized  such  dis- 
trict shall  have  the  powers  conferred,  or  that  may  hereafter 
be  conferred,  by  law,  upon  such  irrigation  districts.  [L.  1895, 
p.  13,  §  1;  B.  &  C.  §  4700;  L.  1911,  c.  223,  p.  378,  §  1.] 

§  6168.  Petition  and  Proceedings  Thereon — Notice  of  Election. 

For  the  purpose  of  organizing  an  irrigation  district  as 
provided  by  this  act,  a  petition,  signed  by  the  required  number 
of  holders  of  title  to  the  lands  within  the  boundaries  of  such 
proposed  irrigation  district,  shall  be  presented  ^o  the  county 
court  of  the  county  in  which  the  land,  or  the  greatest  portion 
thereof,  is  situated ;  said  petition  shall  set  forth  and  particu- 
larly describe  the  boundaries  of  the  proposed  irrigation  dis- 
trict and  shall  state  that  it  is  the  purpose  of  the  petitioners 
to  organize  an  irrigation  district  under  the  provisions  of  this 
act,  and  shall  pray  that  the  same  be  organized  hereunder.  The 
petitioners  must  accompany  the  petition  with  a  good  and 
sufficient  bond,  to  be  approved  by  the  county  court,  in  double 
the  amount  of  the  probable  cost  of  the  organizing  such  dis- 
trict, conditioned  that  the  bondsmen  will  pay  all  the  said  costs 
in  case  said  organization  be  not  effected.  Such  petition  shall 
be  presented  at  a  regular .  meeting  of  said  court,  or  at  any 
special  meeting  called  to  consider  and  act  upon  said  petition, 
and  shall  be  published  once  each  week  for  at  least  four  suc- 
cessive weeks  before  the  time  at  which  the  same  is  to  be 
presented,  in  some  newspaper  printed  and  published  in  the 
county  where  said  petition  is  presented,  together  with  a  notice 
stating  the  time  of  the  meeting  at  which  the  petition  will  be 
presented  and  if  any  portion  of  such  proposed  district  lies 
within  another  county  or  counties,  then  said  petition  and 
notice  shall  be  published  in  a  newspaper  published  in  each  of 
said  counties  in  the  same  time  and  manner.  When  such 
petition  is  presented,  the  county  court  shall  hear  the  same  and 
may  adjourn  such  hearing  from  time  to  time,  not  exceeding 
four  weeks  in  all,  and  on  the  final  hearing  may  make  such 
changes  in  the  proposed  boundaries  as  the  court  may  find 


88  WATER  LAWS  OF  THE  STATE  OF  OREGON 


proper,  and  shall  establish  and  define  such  boundaries; 
provided,  that  no  land  included  within  the  limits  of  any  city 
or  town  shall  be  included  in  any  irrigation  district;  that 
said  court  shall  not  modify  said  boundaries  so  as  to  except 
from  the  operation  of  this  act  any  territory  within  the  boun- 
daries of  the  district  proposed  by  said  petitioners  which  is 
susceptible  of  irrigation  by  the  same  system  of  works  applica- 
ble to  other  lands  in  such  proposed  district,  nor  shall  any 
lands  which  will  not,  in  the  judgment  of  said  court,  be  bene- 
fited by  irrigation  by  said  system,  be  included  within  such 
district;  provided,  that  any  person  whose  lands  are  susceptible 
of  irrigation  from  the  same  source  or  combined  sources,  may 
in  the  discretion  of  the  court,  upon  written  application  of  the 
owner  of  said  court  [land],  have  such  lands  included  in  said 
district.  On  the  final  hearing  the  court  shall  make  and  enter 
an  order  determining  whether  the  requisite  number  of  owners 
of  the  land  within  such  proposed  district  shall  have  petitioned 
for  the  formation  thereof  and  whether  the  petition,  and  notice 
of  the  time  of  presentation  thereof,  shall  have  been  duly  pub- 
lished as  hereinbefore  provided,  and  said  order  as  so  made 
and  entered  shall  be  conclusive  evidence  of  the  facts  found  by 
the  court.  Said  court  in  said  order  shall  designate  the  name 
of  said  district  and  divide  said  district  into  five  divisons,  of 
as  nearly  equal  size  as  may  be  practicable,  which  divisions 
shall  be  numbered  first,  second,  third,  fourth,  and  fifth.  One 
director,  who  shall  be  a  resident  of  the  State  of  Oregon,  and 
a  bona  fide  owner  of  land  situated  in  the  division,  shall  be 
elected  by  each  division;  provided,  that  if  a  majority  of  the 
holders  of  title  petition  for  the  formation  of  a  district,  the 
county  court  may,  if  so  requested  in  the  petition,  order  that 
there  may  be  either  three  or  five  directors,  as  said  court  may 
order  for  such  district,  and  that  they  may  be  elected  by  the 
district  at  large.  Said  county  court  shall  forthwith  give 
notice  of  an  election  to  be  held  in  such  proposed  district  for  the 
purpose  of  determining  whether  or  not  the  same  shall  be 
organized  under  the  provisions  of  this  act.  Such  notice  shall 
describe  the  boundaries  so  established,  and  shall  designate  the 
name  of  such  proposed  district,  and  shall  be  published  -once 
each  week  for  at  least  four  successive  weeks  prior  to  such 
election  in  a  newspaper  published  within  said  county;  and  if 
any  portion  of  said  district  lie  within  another  county  or  coun- 
ties, then  said  notice  shall  be  published  in  a  newspaper  pub- 
lished within  each  of  said  counties  in  the  same  time  and 
manner.  Such  notice  shall  require  the  electors  to  cast  ballots 
which  shall  contain  the  words:  "Irrigation  District — Yes," 
or  "Irrigation  District — No,"  or  words  equivalent  thereto,  and 
shall  also  contain  the  names  of  the  persons  to  be  voted  for  to 


WATER  LAWS  OF  THE  STATE  OF  OREGON  89 


fill  the  various  elective  offices  by  this  act  hereinafter  pro- 
vided. Any  person,  male  or  female,  of  the  age  of  twenty-one 
years  or  over,  whether  a  resident  of  the  district  or  not,  who  is 
a  bona  fide  owner  of  land  situated  in  the  district,  shall  be 
entitled  to  vote  at  any  election  held  under  the  provisions  of  this 
act ;  provided  that  a  bona  fide  claimant  to  an  uncompleted  title 
under  the  public  land  laws  of  the  United  States  or  of  the  State 
of  Oregon  shall  be  construed  to  be  a  bona  fide  owner  of  lands 
within  the  meaning  of  this  act.  [L.  1895,  p.  13,  §  2 ;  B.  &  C. 
§  4701;  L.  1909,  c.  86,  p.  144;  L.  1911,  c.  223,  p.  379,  §  2.] 

The  portion  of  this  section  providing  tution,     prescribing    general    qualifica- 

that  all  residents  of  an  irrigation  dis-  tions    of    voters,     so    that    an    election 

trict,   male  or  female,   and  all  owners,  hereunder      was      regular      and      valid, 

of  land,  residents  or  not,   may  vote  at  (Board  of  Directors  of  Payette-Oregon 

elections  under  this  act,   is  not  in  con-  Slope  Irr.  District  v.  Peterson,  128  Pac. 

flict  with  Sec.   2,   Art.   2  of  the  Consti-  837.) 

§  6169.  Election,  How  Conducted — Proceeding  After  Affirmative  Vote. 

Such  election  shall  be  conducted,  as  nearly  as  practicable, 
in  accordance  with  the  general  election  laws  of  the  State; 
provided,  that  no  particular  form  of  ballot  shall  be  required, 
and  that  the  provisions  of  the  election  laws  as  to  the  form  of 
ballot  shall  not  apply;  and  provided  further,  that  the  provi- 
sions of  the  election  laws  relating  to  the  nomination  of  candi- 
dates shall  not  apply,  but  nominations  for  the  offices  herein- 
after provided  for  may  be  made  by  petition,  signed  by  at  least 
ten  of  the  electors  in  the  proposed  district  or  division,  qualified 
to  vote  for  the  officer  or  officers  so  nominated  by  them,  or  at 
an  assembly  of  not  less  than  twenty-five  of  said  electors,  which 
said  nominations  by  petition  or  by  assembly  shall  be  filed  with 
the  county  clerk  at  least  ten  days  next  preceding  the  date  of 
said  election,  and  the  county  clerk  shall  cause  the  names  of 
all  persons  so  nominated  to  be  placed  on  the  ballots  as  candi- 
dates for  the  respective  offices  for  which  said  persons  have 
been  nominated ;  provided  such  ballots  shall  have  a  blank  line 
thereon  under  the  names  printed,  wherein  may  be  written  the 
name  of  any  candidate  voted  for.  The  said  county  court  shall 
meet  on  the  Monday  next  succeeding  such  election  and  proceed 
to  canvass  the  votes  cast  thereat,  and  if  upon  such  canvass  it 
appears  that  at  least  three-fifths  of  the  votes  cast  are  "Irriga- 
tion District — Yes,"  the  said  court  shall,  by  an  order  entered 
on  its  minutes,  declare  such  territory  duly  organized  as  an 
irrigation  district,  under  the  name  and  style  theretofore  desig- 
nated, and  shall  declare  the  persons  receiving,  respectively  the 
highest  number  of  votes  for  such  several  offices  to  be  duly 
elected  to  such  offices.  Said  court  shall  cause  a  copy  of  such 
order,  duly  certified,  to  be  immediately  filed  for  record  in  the 
office  of  the  county  clerk  of  each  county  in  which  any  portion 
of  such  lands  are  situated,  and  must  also  immediately  forward 


90  WATER  LAWS  OF  THE  STATE  OF  OREGON 


a  copy  thereof  to  the  clerk  of  the  county  court  of  each  of  the 
counties  in  which  any  portion  of  the  district  may  lie;  and  no 
county  court  of  any  county  including  any  portion  of  such  dis- 
trict shall,  after  the  date  of  the  organization  of  such  district, 
allow  another  district  to  be  formed  including  any  of  the  lands 
in  such  district  without  first  securing  the  consent  thereof ;  and 
from  and  after  the  date  of  such  filing  the  board  of  directors 
of  the  district  first  organized ;  and.  from  and  after  the  date  of 
such  filing  the  organization  of  such  district  shall  be  complete, 
and  the  officers  thereof  shall  be  entitled  to  enter  immediately 
upon  the  duties  of  their  respective  offices  upon  duly  qualifying 
as  provided  by  this  law,  and  they  shall  hold  their  offices, 
respectively,  until  their  successors  are  elected  and  qualified. 
The  court  shall  in  all  actions  or  suits  or  other  proceedings  take 
judicial  knowledge  of  the  organization  of,  and  boundaries  of 
all  irrigation  districts  which  have  been  heretofore  or  may  be 
hereafter  organized  under  the  provisions  of  this  act.  Such 
election,  on  organization,  may  be  contested  by  any  person  own- 
ing property  within  the  proposed  district  liable  to  assessment. 
The  directors  elected  at  such  election  shall  be  made  parties 
defendant.  Such  contest  shall  be  brought  in  the  circuit  court 
of  the  county  where  the  petition  for  organization  is  filed; 
provided,  that  if  more  than  one  contest  be  pending  they  shall 
be  consolidated  and  tried  together.  The  court  having  jurisdic- 
tion shall  speedily  try  such  contest,  and  determine,  upon  the 
hearing,  whether  the  election  was  fairly  conducted  and  in 
substantial  compliance  with  the  requirements  of  this  act,  and 
enter  its  judgment  accordingly.  Such  contest  must  be  brought 
within  sixty  days  after  the  canvass  of  the  vote  and  declaration 
of  the  result  by  the  county  court.  The  right  of  appeal  is  hereby 
given  to  either  Darty  to  the  record  within  thirty  days  after 
the  entry  of  judgment.  The  appeal  must  speedily  be  heard 
and  determined  by  the  Supreme  Court,  -and  after  the  expira- 
tion of  said  period  of  sixty  days  no  action  or  suit  shall  be 
commenced  or  maintained  or  defense  made  affecting  the 
validity  of  the  organization  of  any  irrigation  district  organized 
under  the  provisions  of  this  act.  For  the  purpose  of  the  elec- 
tion above  provided  for,  the  county  court  must  establish  a 
convenient  number  of  election  precincts,  in  said  proposed  dis- 
trict, and  define  the  boundaries  thereof,  which  said  precincts 
may  thereafter  be  changed  by  the  board  of  directors  of  such 
district;  provided,  that  in  case  said  district  be  divided  into 
five  divisions,  each  division  shall  constitute  an  election  pre- 
cinct. In  any  district  the  board  of  directors  thereof,  may, 
upon  presentation  of  a  petition  therefor  by  a  majority  of  the 
bona  fide  owners  of  land  situated  in  said  district,  order  that  on 
and  after  the  next  ensuing  general  election,  there  shall  be 


WATER  LAWS  OF  THE  STATE  OF  OREGON  91 


either  three  or  five  directors,  as  said  board  may  order,  and 
that  they  shall  be  elected  by  the  district  at  large  or  by  divisions, 
as  so  petitioned  and  ordered,  and  after  such  order  such  direc- 
tors shall  be  so  elected.  [L.  1895,  p.  14,  §  3 ;  B.  &  C.  §  4702 ;  L. 
1911,  c.  223,  p.  381,  §  3.] 

§  6J.70.  Election  of  Officers  in  Each  District;  Oath  and  Bonds  Of. 

An  election  shall  be  held  in  each  district  on  the  second 
Tuesday  in  January,  1913,  and  on  the  second  Tuesday  in 
January  each  two  years  thereafter,  at  which  a  treasurer  and 
board  of  directors  for  each  district  shall  be  elected.  The  person 
receiving  the  highest  number  of  votes  for  any  office  to  be 
filled  at  such  election  shall  be  elected  thereto,  and  shall  hold 
the  office  from  the  first  Tuesday  in  February  next  after  such 
election  for  two  years  and  until  his  successor  is  elected  and 
qualified.  Within  10  days  after  receiving  the  certificate  of 
election  hereinafter  provided  for  said  officials  shall  take  the 
official  oath  and  file  the  same  in  the  office  of  the  board  of 
directors,  and  the  treasurer  shall  execute  and  deliver  to  the 
board  of  directors  an  official  bond  in  the  sum  of  not  less  than 
fifteen  thousand  ($15,000)  dollars  nor  more  than  fifty  thous- 
and ($50,000)  dollars,  to  be  approved  by  the  board  of  directors 
as  to  amount  and  sufficiency  of  sureties,  and  each  member  of 
the  board  of  directors  shall  execute  an  official  bond  in  the  sum 
of  five  thousand  ($5,000)  dollars,  which  said  bonds  shall  be 
approved  by  the  judge  of  the  county  court  and  shall  be  recorded 
in  the  office  of  the  county  clerk  thereof  and  filed  with  the  sec- 
retary of  the  board.  All  official  bonds  herein  provided  for 
shall  be  in  the  form  prescribed  by  law  for  the  official  bonds  of 
county  officials.  [L.  1895,  p.  15,  §  4;  L.  1909,  c.  147,  p.  215, 
§1;L.  1913,  c.  197,  p.  382,  §  1.] 

§  6171.  Time  of  Taking  Effect. 

The  provisions  of  this  act  shall  not  take  effect  until  the 
second  Tuesday  in  January,  1911.  [L.  1909,  c.  147,  p.  216,  §  2.] 

§  6172.  Notice  of  Election— Judges  Of,  Constitute  Board  of  Election. 
Fifteen  days  before  any  election  held  under  the  provisions 
of  this  act,  subsequent  to  the  organization  of  any  district,  the 
secretary  of  the  board  of  directors  shall  cause  notices  to  be 
posted  in  three  public  places  in  each  election  precinct  of  the 
time  and  place  of  holding  the  election,  and  shall  also  post  a 
general  notice  of  the  same  in  the  office  of  said  board,  which 
shall  be  established  and  kept  at  some  fixed  place  to  be  deter- 
mined by  said  board,  specifying  the  polling  places  of  each  pre- 
cinct. Prior  to  the  time  of  posting  the  notices,  the  board  must 
appoint  for  each  precinct,  from  the  electors  thereof,  three 
judges  of  election,  who  shall  constitute  a  board  of  election  for 


92  WATER  LAWS  OF  THE  STATE  OP  OREGON 

such  precinct.  If  the  board  shall  fail  to  appoint  a  board  of 
election,  or  the  members  appointed  do  not  attend  at  the  opening 
of  the  polls  on  the  morning  of  the  election,  the  electors  of  the 
precinct  at  that  hour  may  appoint  the  board,  or  supply  the 
places  of  the  absent  members  thereof.  The  board  of  directors 
must,  in  its  order  appointing  the  board  of  election,  designate 
the  house  or  place  within  the  precinct  where  the  election  is  to 
be  held.  Candidates  may  be  nominated  for  any  election  held 
hereunder  in  the  same  manner  as  candidates  may  be  nominated 
at  the  organization  election  and  all  nominations  shall  be  filed 
with  the  secretary  of  the  board  at  least  ten  days  before  the 
date  of  the  election.  The  said  secretary  shall  cause  the  names 
of  all  persons  so  nominated  to  be  printed  on  ballots  as  candi- 
dates for  the  respective  offices  for  which  said  persons  have 
been  nominated.  [L.  1895,  p.  16,  §  5;  B.  &  C.  §  4704;  L.  1911. 
c.  223,  p.  382,  §  4.] 

§  6173.  Organization  of  Board  of  Election — Conduct  of  Election. 

The  said  judges  shall  elect  a  chairman  of  the  board  who 
may  administer  all  oaths  required  in  the  progress  of  an 
election,  and  appoint  judges  and  clerks,  if  during  the  progress 
of  an  election  any  judge  or  clerk  cease  to  act.  Any  member 
of  the  board  of  election,  or  any  clerk  thereof,  may  administer 
and  certify  oaths  required  to  be  administered  during  the 
progress  of  an  election.  The  board  of  election  for  each  pre- 
cinct must,  before  opening  the  polls,  appoint  two  clerks  to  act 
as  clerks  of  election.  Before  opening  the  polls  each  member 
of  the  board  and  each  clerk  must  take  and  subscribe  an  oath 
to  faithfully  perform  the  duties  imposed  upon  him  by  law.  Any 
elector  of  the  precinct  may  administer  and  certify  such  oath. 
The  polls  shall  be  opened  at  eight  o'clock  on  the  morning  of 
the  election  and  be  kept  open  until  five  o'clock  in  the  afternoon, 
when  the  same  must  be  closed.  The  provisions  of  the  general 
election  laws  of  the  State  of  Oregon  concerning  the  form  of 
ballot  shall  not  apply  to  the  elections  held  under  this  act. 
[L.  1895,  p.  16,  §  6 ;  B.  &  C.  §  4705 ;  L.  1911,  c.  223,  p.  383,  §  5.] 

§  6174.  Time  of  Election — Counting  Ballots. 

Voting  may  commence  as  soon  as  the  polls  are  open  and  may 
continue  during  all  the  time  the  polls  remain  open,  and  shall  be 
conducted  as  nearly  as  practicable  in  accordance  with  the 
general  election  laws  for  the  State  of  Oregon,  and  acts  amend- 
atory and  supplementary  thereof.  As  soon  as  the  polls  are 
closed  the  judges  shall  open  the  ballot  box  and  shall  commence 
counting  the  votes;  and  in  no  case  shall  the  ballot  box  be 
removed  from  the  room  in  which  the  election  is  held  until  all 
the  ballots  have  been  counted.  The  counting  of  the  ballots 


WATER  LAWS  OF  THE  STATE  OP  OREGON  93 


shall  in  all  cases  be  public.  The  ballots  shall  be  taken  out  one 
by  one,  by  the  chairman  of  the  board  of  election,  or  one  of  the 
judges,  who  shall  open  them  and  read  aloud  the  name  of  each 
person  contained  thereon,  and  the  office  for  which  every  such 
person  is  voted  for.  Each  clerk  shall  write  down  each  office 
to  be  filled  and  the  name  of  each  person  voted  for  for  such 
office,  and  shall  keep  the  number  of  votes  by  tallies,  as  they 
are  read  by  such  judge,  the  counting  of  such  votes  shall  con- 
tinue without  adiournment  till  all  the  votes  shall  have  been 
counted.  [L.  1895,  p.  17,  §  7;  B.  &  C.  §  4706.] 

§  6175.  Certificate  of  Vote. 

As  soon  as  all  the  votes  are  read  off  and  counted,  a  certifi- 
cate shall  be  drawn  up  on  each  of  the  papers  containing  the 
poll  list  and  tallies,  or  attached  thereto,  stating  the  number  of 
votes  each  one  voted  for  has  received,  and  designating  the 
office  to  fill  which  he  was  voted  for,  which  number  shall  be 
written  in  words  and  figures  at  full  length.  Each  certificate 
shall  be  signed  by  all  the  members  of  the  board  of  election  and 
by  both  clerks.  One  of  said  certificates,  with  the  poll  list  and 
the  tally  paper  to  which  it  is  attached,  shall  be  retained  by  the 
chairman  of  the  board  of  election,  and  preserved  by  him  for  at 
least  six  months.  The  ballots  shall  be  strung  on  a  cord  or 
thread  by  said  chairman,  during  the  counting  thereof,  in  the 
order  in  which  they  are  entered  upon  the  tally  lists  by  the 
clerks ;  and  said  ballots,  together  with  the  other  of  said  certifi- 
cates, with  the  poll  list  and  tally  papers  to  which  it  is  attached, 
shall  be  sealed  by  said  chairman  in  the  presence  of  the  other 
judges  and  the  clerks,  and  indorsed  "election  returns  of  (nam- 
ing the  precinct)  precinct,"  and  be  directed  to  the  secretary  of 
the  board  of  directors,  and  shall  be  immediately  delivered  by 
said  chairman,  or  by  other  safe  and  responsible  carrier  desig- 
nated by  him,  to  said  secretary,  and  the  ballots  shall  be  keot 
unopened  for  at  least  six  months;  and  if  any  person  be  of  the 
opinion  that  the  vote  of  any  precinct  has  not  been  correctly 
counted  he  may  appear  on  the  day  appointed  by  the  board  of 
directors  to  open  and  canvass  the  returns  and  demand  a 
recount  of  the  precinct  that  is  claimed  to  have  been  incorrectly 
counted.  [L.  1895,  p.  17,  §  8 ;  B.  &  C.  §  4707.] 

§  6176.  Canvass  of  Returns  Must  Be  in  Public. 

No  list,  tally  paper,  or  certificate  returned  from  any  elec- 
tion shall  be  set  aside  or  rejected  for  want  of  form  if  it  can  be 
satisfactorily  understood.  The  board  of  directors  must  meet 
at  its  usual  place  of  meeting  on  the  first  Monday  after  each 
election  to  canvass  the  returns.  If,  at  the  time  of  meeting,  the 
returns  of  each  precinct  in  which  polls  have  been  opened  have 


94  "WATER  LAWS  OF  THE  STATE  OF  OREGON 


been  received,  the  board  of  directors  must  then  and  there  pro- 
ceed to  canvass  the  returns;  but  if  all  the  returns  have  not 
been  received,  the  canvass  must  be  postponed  from  day  to  day 
until  all  the  returns  have  been  received,  or  until  six  postpone- 
ments have  been  had.  The  canvass  must  be  made  in  public 
and  by  opening  the  returns  and  estimating  the  vote  of  the 
district  for  each  person  voted  for,  and  declaring  the  result 
thereof.  [L.  1895,  p.  18,  §  9 ;  B.  &  C.  §  4708.] 

§  6177.  Statement  of  Result,  What  Must  Show. 

The  secretary  of  the  board  of  directors  must,  as  soon  as  the 
result  is  declared,  enter  on  the  records  of  such  board  a  state- 
ment of  such  result,  which  statement  must  show :  First,  the 
whole  number  of  votes  cast  in  the  district  (and  in  each  divi- 
sion of  the  district)  ;  second,  the  names  of  the  persons  voted 
for;  third,  the  office  to  fill  which  each  person  was  voted  for; 
fourth,  the  number  of  votes  given  in  each  precinct  to  each  of 
such  persons ;  fifth,  the  number  of  votes  given  in  each  division 
for  the  office  of  director,  and  the  number  of  votes  given  in  the 
district  for  the  office  of  assessor,  collector,  and  treasurer. 
The  board  of  directors  must  declare  elected  the  persons  having 
the  highest  number  of  votes  given  for  each  office.  The  secre- 
tary must  immediately  make  out  and  deliver  to  such  person  a 
certificate  of  election,  signed  by  him  and  authenticated  with 
the  seal  of  the  board.  In  case  of  a  vacancy  in  the  office  of 
assessor,  collector,  or  treasurer,  the  vacancy  shall  be  filled  by 
appointment  of  the  board  of  directors.  In  case  of  a  vacancy 
in  the  office  of  director,  the  vacancy  shall  be  filled  by 
appointment  by  the  county  court  of  the  county  where  the  office 
of  such  board  of  directors  is  situated,  from  the  division  in 
which  the  vacancy  occurred.  An  officer  appointed  as  above 
provided  shall  hold  his  office  until  the  next  regular  election 
for  said  district,  and  until  his  successor  is  elected  and  quali- 
fied. [L.  1895,  p.  18,  §  10;  B.  &  C.  §  4709.] 

§  6178.  Organization  of  the  Board;  Duties,  By-Laws,  Etc. 

On  the  first  Tuesday  in  February  next  following  their 
election,  the  board  of  directors  shall  meet  and  organize  as  a 
board,  elect  a  president  from  their  number,  and  appoint  a 
secretary,  who  shall  each  hold  office  during  the  pleasure  of  the 
board.  The  board  shall  have  the  power  and  it  shall  be  their 
duty  to  manage  and  conduct  the  business  and  affairs  of  the 
district;  make  and  execute  all  necessary  contracts;  employ  and 
appoint  such  agents,  officers,  and  employees  as  may  be  re- 
quired, and  to  prescribe  their  duties;  establish  equitable  by- 
laws, rules,  and  regulations  for  the  distribution  and  use  of 
water  among  the  owners  of  said  lands,  and  generally  to 


WATER  LAWS  OF  THE  STATE  OF  OREGON  95 

perform  all  such  acts  as  shall  be  necessary  to  fully  carry  out 
the  purposes  of  this  act.  The  said  by-laws,  rules,  and  regula- 
tions must  be  printed  in  convenient  form  for  distribution  in 
the  district;  and  it  is  hereby  expressly  provided  that  all  water 
distributed  for  irrigation  purposes  shall  be  apportioned  ratably 
to  each  land  owner  upon  the  basis  of  the  ratio  which  the  last 
assessment  of  such  owner  for  district  purposes  within  said 
district  bears  to  the  whole  sum  assessed  upon  the  district; 
provided,  that  any  land  owner  may  assign  the  right  to  the 
whole  or  any  portion  of  the  waters  so  apportioned  to  him  for 
any  one  year.  [L.  1895,  p.  18,  §  11 ;  B.  &  C.  §  4710.] 

§  6179.  Meetings — Quorum — Right  to  Acquire  Land  and  Water,  and 
Build  Canals,  Dams,  Etc. 

The  board  of  directors  shall  hold  a  regular  monthly  meet- 
ing, in  their  office,  on  the  first  Tuesday  of  every  month,  and 
such  special  meetings  as  may  be  required  for  the  proper  trans- 
action of  business;  provided,  that  all  special  meetings  must 
be  ordered  by  the  majority  of  the  board.  The  order  must  be 
entered  of  record,  and  five  days'  notice  thereof  must  be  given 
by  the  secretary  to  each  member  not  joining  in  the  order.  The 
order  must  specify  the  business  to  be  transacted,  and  none  other 
than  that  suecif  ied  may  be  transacted  at  such  special  meetings, 
unless  all  the  members  be  present.  All  meetings  of  the  board 
must  be  public,  and  a  majority  of  the  members  shall  constitute 
a  quorum  for  the  transaction  of  business ;  but  on  all  questions 
requiring  a  vote  there  shall  be  a  concurrence  of  a  majority  of 
said  board.  All  records  of  the  board  shall  be  open  to  the 
inspection  of  any  elector  during  business  hours.  The  board 
and  its  agents  and  employees  shall  have  the  right  to  enter  upon 
any  land  to  make  surveys,  and  may  locate  the  necessary  irriga- 
tion or  drainage  works  and  the  line  for  any  canal  or  canals, 
and  the  necessary  branches  for  the  same,  on  any  lands  which 
may  be  deemed  best  for  such  location.  Said  board  shall  also 
have  the  right  to  acquire,  either  by  lease,  purchase,  condemna- 
tion, or  other  legal  means,  all  lands  and  waters  and  water 
rights,  rights-of-way  and  other  property,  including  canals  and 
works  constructed  and  being  constructed  by  private  owners, 
necessary  for  the  construction,  use,  supply,  maintenance,  repair 
and  improvement  of  any  canal  or  canals  and  works  proposed 
to  be  constructed  by  said  board,  and  shall  also  have  the  right  to 
so  acquire  lands  and  all  necessary  appurtenances  for  reservoirs 
for  the  storage  of  needful  waters,  or  for  any  other  purpose 
reasonably  necessary  for  the  purposes  of  said  district.  The 
property,  the  right  to  condemn  which  is  hereby  given  shall 
include  property  already  devoted  to  a  public  use  which  is  less 
necessary  than  the  use  for  which  it  is  required  by  the  district, 


96  WATER  LAWS  OF  THE  STATE  OF  OREGON 

whether  used  for  irrigation  or  any  other  purpose.  In  case  of 
purchase  of  any  property  or  right,  the  bonds  of  the  district 
hereinafter  provided  for  may  be  used  at  their  par  value  in 
payment  and  in  case  of  condemnation  the  board  shall  proceed, 
in  the  name  of  the  district,  under  the  provisions  of  the  laws 
of  the  State  of  Oregon.  Said  board  may  also  construct  or 
contract  for  the  construction  of  the  necessary  canals,  dams, 
reservoirs,  pumping  plants  and  other  necessary  works  for  the 
collection  and  distribution  of  water  in,  and  for  the  drainage 
of  said  district,  and  may  do  any  and  every  lawful  act  necessary 
to  be  done  that  water  may  be  furnished  for  the  lands  in  said 
district  for  irrigation  purposes  (or  in  connection  with  the 
drainage  thereof)  and  said  district  may  provide  for  and 
furnish  water  for  lands  not  included  within  such  irrigation 
district  upon  receiving  proper  compensation  therefor.  In  case 
of  construction  by  the  district  of  any  canals,  dam,  reservoir, 
pumping  plant,  power  plant,  or  other  necessary  work  for  the 
collection  and  distribution  of  water,  or  in  case  the  district 
contracts  for  the  construction  thereof,  the  bonds  of  the  district 
may  be  used  at  par  value  in  payments  thereon  and  may  be 
delivered  by  the  board  of  directors  at  such  times  and  in  such 
amounts  as  may  be  necessary  to  enable  the  district  to  carry  on 
such  construction,  or  make  the  payments  due  by  it  under  said 
contract.  The  use  of  all  water  required  for  the  irrigation  of 
the  lands  of  any  district  formed  under  the  provisions  of  this 
act,  together  with  all  water  rights  and  rights  to  appropriate 
water,  rights  of  way  for  canals  and  ditches,  sites  for  reservoirs 
and  all  other  property  required  in  fully  carrying  out  the  pro- 
visions of  this  act  is  hereby  declared  to  be  a  public  use  more 
necessary  and  more  beneficial  than  any  other  use,  either  public 
or  private,  to  which  said  water,  water  rights,  rights  to  appro- 
priate water,  lands  or  other  property  have  been  or  may  be 
appropriated  within  said  district  to  an  extent  less  than  the 
whole  thereof.  [L.  1895,  p.  19,  §  12;  B.  &  C.  §  4711;  L.  1911, 
c.  223,  p.  383,  §  6.] 

§  6180.  Title  to  Property  Vests  in  District. 

The  legal  title  to  all  property  acquired  under  the  provisions 
of  this  act  shall  immediately  and  by  operation  of  law  vest  in 
such  irrigation  district,  and  shall  be  held  by  such  district  in 
trust  for  and  is  hereby  dedicated  and  set  apart  to  the  uses  and 
purposes  set  forth  in  this  act ;  and  said  board  is  hereby  author- 
ized and  empowered  to  hold,  use,  acquire,  manage,  occupy,  and 
possess  said  property  as  herein  provided.  [L.  1895,  p.  20,  §  13 ; 
B.  &  C.  §  4712.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  97 


§  6181.  Board  Authorized  to  Take  Deeds,  Maintain  Suits,  and  Enter 

Into  Contracts  With  United  States. 

The  said  board  is  hereby  authorized  and  empowered  to  take 
conveyances  or  other  assurances  for  all  property  acquired  by 
it  under  the  uses  and  provisions  of  this  act,  in  the  name  of  such 
irrigation  district,  to  and  for  the  purposes  herein  expressed; 
to  enter  into  any  obligation  or  contract  with  the  United  States 
of  America  for  the  construction  of  the  necessary  works,  and 
for  the  use,  control,  and  maintenance  of  the  same,  and  the 
distribution  and  delivery  of  water  for  irrigation  therefrom, 
under  the  provisions  of  an  act  of  Congress  entitled  "An  Act 
appropriating  the  receipts  from  the  sale  and  disposal  of  public 
lands  in  certain  states  and  territories  to  the  construction  of 
irrigation  works  for  the  reclamation  of  arid  lands,"  approved 
June  17,  1902,  and  all  amendments  thereof,  and  all  rules  and 
regulations  thereunder,  and  to  institute  and  maintain  any  and 
all  actions  and  proceedings,  suits  at  law  or  in  equity  necessary 
or  proper  in  order  to  fully  carry  out  the  provisions  of  this  act 
or  to  enforce,  maintain,  protect,  or  preserve  any  and  all  rights, 
privileges,  and  immunities  created  by  this  act,  or  acquired  in 
pursuance  thereof ;  and  in  all  courts,  actions,  suits,  or  proceed- 
ings, the  said  board  may  sue,  appear  and  defend  in  person  or 
by  attorneys,  and  in  the  name  of  such  irrigation  district.  [L. 
1895,  p.  20,  §  14;  B.  &  C.  §  4713;  L.  1909,  c.  219,  p.  364,  §  1.] 

§  6182.  Board  to  Formulate  Plan — State  Engineer  to  Report — Elec- 
tion As  to  Bond  Issue — Bonds. 

For  the  purpose  of  procuring  necessary  reclamation  works, 
and  acquiring  the  necessary  property  and  rights  therefor  and 
otherwise  carrying  out  the  provisions  of  this  act,  the  board  of 
directors  of  any  such  district  shall,  as  soon  as  practicable  after 
the  organization  of  any  such  district,  by  a  resolution  entered 
on  its  records,  formulate  a  general  plan  of  its  proposed  works, 
in  which  it  shall  state  in  a  general  way  what  works  or  property 
it  proposes  to  lease,  purchase  or  acquire,  and  what  work 
it  proposes  to  construct,  and  the  estimated  cost  for  carrying 
out  said  plan,  and  how  it  proposes  to  raise  the  necessary 
funds  therefor.  For  the  purpose  of  ascertaining  the  estimated 
cost  or  value  of  any  such  work,  said  board  shall  cause  such 
surveys,  examinations  and  plans  to  be  made  as  shall  demon- 
strate the  practicability  of  such  plan,  and  furnish  the  proper 
basis  for  an  estimate  of  the  cost  of  carrying  out  the  same. 
All  such  surveys,  examinations,  maps,  plans  and  estimates, 
shall  be  made  under  the  direction  of  a  competent  irrigation 
engineer  to  be  employed  by  said  board  on  such  basis  of  com- 
pensation as  it  may  determine,  and  shall  be  certified  by  such 
engineer.  Said  board  shall  then  submit  a  copy  of  the  same  to 


98  WATER  LAWS  OP  THE  STATE  OP  OREGON 


the  State  Engineer,  and  within  ninety  days  thereafter  the 
State  Engineer  shall  make  and  file  a  report  upon  the  same 
with  the  said  board,  which  report  shall  contain  such  matters 
as  in  the  judgment  of  the  State  Engineer,  may  be  reasonably 
necessary.    Upon  receiving  said  report  said  board  of  directors 
shall  proceed  to  determine  the  amount  of  money  necessary  to 
be  raised,  and  the  character  and  extent  of  contract  and  obliga- 
tions necessary  to  be  undertaken,  and  shall  immediately  there- 
after call  a  special  election,  at  which  shall  be  submitted  to  the 
electors  of  said  district,  the  question  whether  or  not  the  bonds 
of  said  district,  or  the  right  to  enter  into  an  obligation  or 
contract  with  the  United  States,  in  the  manner,  in  the  amount, 
and  to  the  extent,  as  determined  and  herein  provided,  shall  be 
authorized.    Notice  of  such  election  must  be  given  by  posting 
notices  in  three  public  places  in  each  election  precinct  in  said 
district  for  at  least  twenty  days,  and  also  by  publication  of 
such  notice  in  some  newspaper  published  in  the  county  where 
the  office  of  the  board  of  directors  of  such  district  is  kept,  once 
a  week  for  at  least  three  successive  weeks.    Such  notices  must 
specify  the  time  of  holding  the  election,  the  amount  of  bonds 
proposed  to  be  issued,  or  the  extent  of  the  obligation  proposed 
to  be  undertaken ;  and  said  election  must  be  held  and  the  result 
thereof  determined  and  declared  in  all  respects  as  nearly  as 
practicable  in  conformity  with  the  provisions  of  this  act  gov- 
erning the  election  of  officers ;  provided,  that  no  informalities 
in  conducting  such  election  shall  invalidate  the  same,  if  the 
election  shall  have  been  otherwise  fairly  conducted.     At  such 
election  the  ballot  shall  contain  the  words  "Bonds — Yes,"  or 
"Bonds — No,"  or  other  words  equivalent  thereto.  If  a  majority 
of  the  votes  cast  are  "Bonds — Yes,"  the  board  of  directors 
shall  cause  bonds  in  said  amount  to  be  issued,  or  such  portion 
thereof  as  may  be  necessary  from  time  to  time ;  if  the  majority 
of  the  votes  cast  at  any  bond  election  are  "Bonds — No,"  the 
result  of  such  election  shall  be  so  declared  and   entered  of 
record;  and  whenever  thereafter  said  board  in  its  judgment 
deems  it  for  the  best  interest  of  the  district  that  the  question 
of  the  issuance  of  bonds  in  said  amount  or  any  amount,  shall 
be  submitted  to  said  electors,  it  shall  so  declare  of  record  in  its 
minutes,  and  may  thereupon  submit  such  questions  to  said 
electors  in  the  same  manner  and  with  like  effect  as  at  such 
previous  election.     The  bonds  authorized  by  any  vote  shall  be 
designated  as  series,  and  the  series  shall  be  numbered  consecu- 
tively as  authorized.    The  portion  of  bonds  of  a  series  sold  at 
any  one  time  shall  be  designated  as  an  issue,  and  each  issue 
shall  be  numbered  in  its  order.    The  bonds  of  each  issue  shall 
be  numbered  consecutively,  commencing  with  those  earliest 
falling  due,  and  they  shall  be  designated  as  twenty-one  year 


WATER  LAWS  OF  THE  STATE  OF  OREGON  99 


bonds,  twenty-two  years  bonds.  They  shall  be  negotiable  in 
form  and  payable  in  money  of  the  United  States  as  follows, 
to-wit :  At  the  expiration  of  twenty-one  years  from  each  issue 
five  per  cent  of  the  whole  number  of  bonds  of  such  issue;  at 
the  ex^irat'on  of  twenty-two  years,  six  per  cent;  at  the  expira- 
tion of  twenty-three  years,  seven  per  cent ;  at  the  expiration  of 
twenty-four  years,  eight  per  cent ;  at  the  expiration  of  twenty- 
five  years,  nine  per  cent ;  at  the  expiration  of  twenty-six  years, 
ten  per  cent;  at  the  expiration  of  twenty-seven  years,  eleven 
per  cent ;  at  the  expiration  of  twenty-eight  years,  thirteen  per 
cent;  at  the  expiration  of  twenty-nine  years,  fifteen  per  cent; 
at  the  expiration  of  thirty  years,  sixteen  per  cent;  provided, 
that  such  percentages  may  be  changed  sufficiently  so  that  every 
bond  shall  be  in  an  amount  of  one  hundred  dollars  or  a  multiple 
thereof,  and  the  above  provisions  shall  not  require  any  single 
bond  to  fall  due  in  partial  payments.  The  board  of  directors 
may  in  its  discretion  issue  said  bonds  so  that  they  shall  com- 
mence to  mature  in  eleven  years  instead  of  twenty-one  years 
in  which  case  they  shall  mature  each  successive  year  thereafter 
upon  the  same  basis  and  percentage  as  is  above  provided  for 
bonds  commencing  to  mature  on  the  twenty-first  year.  Interest 
coupons  shall  be  attached  thereto,  and  all  bonds  and  coupons 
shall  be  dated  on  January  first  or  July  first  next  following  the 
date  of  their  authorization,  and  they  shall  bear  interest  at  a 
rate  of  not  to  exceed  six  per  cent  per  annum,  payable  semi- 
annually  on  the  first  day  of  January  and  July  of  each  year. 
The  principal  and  interest  shall  be  payable  at  the  places  desig- 
nated therein.  Said  bonds  shall  be  each  of  the  denomination  of 
not  less  than  one  hundred  dollars  nor  more  than  one  thousand 
dollars,  and  shall  be  signed  by  the  president  and  secretary, 
and  the  seal  of  the  board  of  directors  shall  be  affixed  thereto. 
Coupons  for  the  interest  shall  be  attached  to  each  bond  and 
signed  by  the  secretary.  Said  bonds  shall  express  on  their 
face  that  they  were  issued  by  the  authority  of  this  act,  naming 
it,  and  all  amendments  thereof,  and  shall  also  state  the  number 
of  the  issue  of  which  such  bonds  are  a  part.  The  secretary 
shall  keep  a  record  of  the  bonds  sold,  the  date  of  sale,  the  price 
received,  and  the  name  of  the  purchaser.  In  case  the  money 
raised  by  the  sale  of  all  the  bonds  be  insufficient  for  the  com- 
pletion of  the  plans  and  works  adopted,  and  additional  bonds 
be  not  voted,  it  shall  be  the  duty  of  the  board  to  provide  for  the 
completion  of  said  plan  by  levy  of  assessments  therefor,  in  the 
manner  herein  provided.  After  such  authorization  of  indebt- 
edness shall  have  been  made  by  the  electors  so  evidenced  by 
such  bond  election,  the  board  of  directors  may,  instead  of 
issuing  bonds  in  the  manner  provided  in  this  act,  enter  into  an 
obligation  or  contract  with  the  United  States  of  America  for 


100  WATER  LAWS  OF  THE  STATE  OP  OREGON 

the  construction  or  purchase  of  the  necessary  works  under  the 
provisions  -of  an  act  of  Congress  entitled  "An  Act  appropriat- 
ing the  receipts  from  the  sale  and  disposal  of  public  lands  in 
certain  states  and  territories  to  the  construction  of  irrigation 
works  for  the  reclamation  of  arid  lands,"  approved  June  17,. 
1902,  and  all  amendments  thereto,  and  the  rules  and  regula- 
tions thereunder,  or  the  board  of  directors  may  issue  bonds  for 
a  portion  of  the  amount  of  the  indebtedness  authorized  by  such 
bond  election,  and  may  enter  into  an  obligation  or  contract 
with  the  United  States  of  America  to  the  extent  of  the  re- 
mainder of  such  amount,  and  may  obligate  and  bind  the  dis- 
trict for  the  payments  to  be  made  thereunder  in  the  manner 
and  at  the  times  and  places  provided  by  said  act  of  Congress 
and  by  the  rules  and  regulations  thereunder.  [L.  1895,  p.  20, 
§  15;  B.  &  C.  §  4714;  L.  1909,  c.  219,  p.  364,  §  2;  L.  1911, 
c.  223,  p.  385.] 

§  6183.  Directors  May  Enter  Into   Contract  With  United  States  in 
Lieu  of  All  or  Part  of  Bond  Issue. 

After  such  authorization  of  indebtedness  shall  have  been 
made  by  the  electors  so  evidenced  by  such  bond  election,  the 
board  of  directors  may,  instead  of  issuing  bonds  in  the  manner 
provided  in  this  act,  enter  into  an  obligation  or  contract  with 
the  United  States  of  America  for  the  construction  or  purchase 
of  the  necessary  works  under  the  provisions  of  an  act  of 
Congress  entitled  "An  Act  appropriating  the  receipts  from  the 
sale  and  disposal  of  public  lands  in  certain  states  and  terri- 
tories to  the  construction  of  irrigation  works  for  the  reclama- 
tion of  arid  lands,"  approved  June  17,  1902,  and  all  amend- 
ments thereto,  and  the  rules  and  regulations  thereunder,  or  the 
board  of  directors  may  issue  bonds  for  a  portion  of  the  amount 
of  indebtedness  authorized  by  such  election,  and  may  enter  into 
an  obligation  or  contract  with  the  United  States  of  America  to 
the  extent  of  the  remainder  of  such  amount,  and  may  obligate 
and  bind  the  district  for  the  payments  to  be  made  thereunder 
in  the  manner  and  at  the  times  and  places  provided  by  said 
act  of  Congress  and  by  the  rules  and  regulations  thereunder. 
[L.  1895,  D.  20,  §  15;  B.  &  C.  §  4714;  L.  1909,  c.  219, 
p.  364,  §  2.] 

§  6184.  Board  May  Sell  Bonds — Procedure,  and  Notice. 

The  board  may  sell  bonds  from  time  to  time  in  such  quan- 
tities as  may  be  necessary  and  most  advantageous,  to  raise 
money  for  the  construction  of  said  canals  and  works,  the 
acquisition  of  said  property  and  rights,  and  otherwise  to  fully 
carry  out  the  object  and  purposes  of  this  act.  Before  making 
any  sale  the  board  shall,  at  a  meeting,  by  resolution,  declare 


WATER  LAWS  OF  THE  STATF//Q^  , 


its  intention  to  sell  a  specified  amount  of  bonds  and  the  day  and 
hour  and  place  of  such  sale,  and  shall  cause  such  resolution  to 
be  entered  on  the  minutes,  and  notice  of  sale  to  be  given  by 
publication  thereof  at  least  thirty  days  in  three  newspapers 
published  in  the  State  of  Oregon,  one  of  which  shall  be  a  news- 
paper published  in  the  county  in  which  the  office  of  the  board 
of  directors  is  situated,  if  there  be  a  newspaper  published  in 
said  county,  and  in  any  other  newspaper,  at  their  discretion  j 
the  notice  shall  state  that  sealed  proposals  will  be  received  by 
the  board  at  their  office  for  the  purchase  of  the  bonds  till  the 
day  and  hour  named  in  the  resolution.  At  the  time  appointed, 
the  board  shall  open  the  proposals  and  may  reject  all  bids;  but 
said  board  shall  in  no  event  sell  any  of  the  said  bonds  for  less 
than  ninety  per  cent  of  the  face  value  thereof;  provided,  that 
the  board  of  directors  without  previously  offering  said  bonds 
for  sale,  as  above  provided,  may  use  said  bonds  at  their  par 
value  for  the  purchase  or  acquisition  of  canals,  reservoir  sites, 
water  rights  or  other  works,  or  for  the  construction,  or  in  pay- 
ment for  the  construction  of  any  canals,  reservoirs,  pumping 
plants  or  other  works  to  be  used  for  the  irrigation  or  drainage 
of  the  lands  in  the  district  or  any  part  of  said  lands;  and 
nothing  in  this  act  shall  inhibit  said  district  from  providing 
for  the  irrigation  or  drainage,  or  either  alone  in  units  or  por- 
tions from  time  to  time.  [L.  1895,  p.  22,  §  16;  B.  &  C.  §  4715; 
L.  1911,  c.  223,  p.  388.] 

See  Board  of  Directors  of  Payette-Oregon  Slope  Irr.  Dist.  v.  Peterson,  128 
Pac.  837. 

§  6185.  Bonds,  How  Paid. 

Said  bonds  and  the  interest  thereon,  and  all  obligations  for 
the  payment  of  money  authorized  and  incurred  under  this  act, 
shall  be  paid  by  revenue  derived  from  the  annual  assessments 
upon  the  land  in  the  district,  and  all  the  lands  in  the  district 
shall  be  and  remain  liable  to  be  assessed  for  such  payments  as 
herein  provided,  and  under  and  subject  to  the  provisions  of 
this  act.  [L.  1895,  p.  22,  §  17;  B.  &  C.  §  4716;  L.  1909,  c.  219, 
P.  367,  §  3.] 

§  3186.  Assessment  of  District  Lands. 

The  board  of  directors  shall,  on  or  before  the  first  Tuesday 
in  September  of  each  year,  make  a  computation  of  the  whole 
amount  of  money  necessary  to  be  raised  by  said  district  for 
the  ensuing  year,  for  the  purpose  of  paying  all  charges  and 
expenses  and  all  obligations  of  said  district  incurred  by  virtue 
of  any  contract  or  obligation  with  the  United  States  of 
America,  or  the  issuing  of  any  bonds  as  herein  contemplated, 
for  the  construction,  purchase  or  acquisition  of  any  canals, 
works  or  property  as  contemplated,  and  the  expense  of  main- 


Sig.   8 


102  WATER  TJA  WS.OF  THE  STATE  OP  OREGON 

tenance  of  the  irrigation  system  and  works  of  said  district, 
interest  on  any  and  all  bonds  thereof,  and  including  any 
special  assessments  that  may  have  been  ordered  or  determined 
upon,  in  compliance  with  this  act,  and  all  other  charges  or 
expenses. of  said  district,  lawfully  incurred  or  to  be  incurred 
of  whatever  name  and  nature.  Said  amount  of  money  when 
so  determined  by  said  board,  shall  be  and  constitute  an  assess- 
ment upon  all  of  the  land  included  in  said  district,  and  shall  be 
apportioned  by  said  board  to  the  iands  owned  or  held  by  each 
person,  firm  or  corporation,  and  each  United  States  Govern- 
ment land  entry  for  which  water  rights  have  been  provided  by 
said  district  and  contract  therefor  made  with  the  entryman 
thereof,  in  proportion  to  the  number  of  acres  of  irrigable  land 
owned  or  held  by  each  person,  firm  or  corporation,  so  that 
each  acre  of  irrigable  land  in  the  district  shall  be  assessed  and 
required  to  pay  the  same  amount  as  every  other  acre  of 
irrigable  (land)  therein.  The  board  shall  prepare  a  list  or 
record  of  said  assessments  and  apportionments  in  duplicate, 
giving  the  description  of  the  ownership  or  holdings  of  each 
person,  firm  or  corporation  therein  assessed  or  apportioned, 
one  of  which  shall  be  a  permanent  record  in  the  office  of  said 
board ;  provided,  that  in  no  case  shall  any  lands  be  taxed  for 
irrigation  purposes,  under  this  act,  which  from  any  natural 
causes  cannot  be  irrigated,  or  which  are  incapable  of  cultiva- 
tion ;  and  provided  further,  that  where  ditches,  canals,  reser- 
voirs, or  other  irrigation  works  or  pumping  plants  are  actually 
constructed  and  in  operation  at  the  time  of  the  organization 
of  the  irrigation  district,  the  lands  actually  irrigated  therefrom 
at  that  time  shall  not  be  liable  to  be  taxed,  under  the  provisions 
of  this  act,  except  for  benefits  accruing  thereto  by  reason  of 
the  construction  or  maintenance  of  a  drainage  system  or  works 
by  said  district,  until  such  time  as  such  irrigation  district  shall 
purchase,  lease  or  acquire  by  condemnation  or  otherwise,  such 
ditches,  canals,  reservoirs,  pumping  plants  or  other  works, 
including  water  rights ;  provided,  however,  nothing  in  this  act 
shall  inhibit  the  board  of  directors  from  at  any  time  entering 
into  a  contract  respecting  any  lands  within  said  district,  ex- 
empting such  lands  from  liability  under  this  act,  except  from 
debts  already  incurred,  upon  condition  that  the  district  be 
exempt  from  any  liability  or  duty  to  furnish  water  or  other 
benefits  to  said  land.  [L.  1895,  p.  22,  §  18;  L.  1909,  c.  219, 
p.  367,  §  4;  L.  1911,  c.  223,  p.  388;  L.  1913,  c.  197,  §  2.] 

§  6190.  Assessment  and  Equalization  of  Taxes. 

On  or  before  the  first  Tuesday  in  September  of  each  year 
the  secretary  of  the  board  shall  give  notice  of  the  time  the 
board  of  directors,  acting  as  a  board  of  equalization,  will  meet 


WATER  LAWS  OF  THE  STATE  OF  OREGON  103 


for  the  purpose  of  reviewing  and  correcting  its  assessment  and 
apportionment  of  taxes,  as  in  this  act  provided,  by  publishing 
the  same  in  a  newspaper  published  in  each  of  the  counties  in 
which  the  district  is  situated.  The  time  when  the  board  shall 
meet  for  said  purpose  shall  be  on  the  first  Tuesday  of  October 
following,  and  in  the  meantime  the  assessment  list  and  record 
shall  remain  in  the  office  of  the  secretary  of  the  board,  for  the 
inspection  of  all  persons  interested,  and  all  persons  shall  be 
presumed  to  have  notice  of  the  time  of  such  meeting,  whether 
he  receives  actual  notice  or  not.  [L.  1895,  p.  23,  §  22 ;  L.  1913, 
c.  197,  §  3.] 

§  6191.  Equalization  Board;  Hearing  of  Objection. 

On  the  first  Tuesday  of  October  of  each  year  the  board  of 
directors,  which  is  hereby  constituted  a  board  of  equalization 
for  that  purpose,  shall  meet  and  continue  in  session  from  day 
to  day,  as  long  as  may  be  necessary,  not  to  exceed  10  days, 
exclusive  of  Sundays,  to  hear  and  determine  any  objections  by 
any  interested  persons  to  the  assessments  and  apportionment 
thereof  and  any  other  matters  connected  therewith  that  may 
come  before  them,  and  the  board  shall  change  its  assessment 
and  the  apportionment  thereof  and  the  list  and  the  record 
of  the  same  as  to  irrigable  acreage,  description,  etc.,  in  any 
respect  and  in  such  manner  as  may  be, necessary  as  to  make 
the  same  just  and  in  accordance  with  the  facts.  The  secretary 
of  the  board  shall  be  present  during  these  sessions,  and  shall 
note  all  changes  made  in  such  assessment,  apportionments,  lists 
and  record,  and  in  the  names  of  the  persons  whose  property  is 
listed.  [L.  1895,  p.  24,  §  23 ;  L.  1913,  c.  197,  §  4.] 

§  6192.  Levy  of  Assessment,  and  Collection. 

After  the  board  of  directors  shall  have  completed  its  equali- 
zation of  said  assessment,  it  shall  certify  one  of  the  copies  or 
duplicates  thereof,  made  by  it  during  that  year,  to  the  county 
clerk.  The  county  clerk  shall  enter  the  apportionment  so 
made,  upon  the  county  assessment  roll,  against  the  property 
therein  respectfully  (respectively)  described,  in  the  same  man- 
ner that  other  municipal  assessments  are  entered  by  him  on 
said  assessment  roll,  except  that  the  total  sum  apportioned  to 
and  charged  against  each  description  of  land  therein  contained, 
shall  be  entered  by  the  clerk  as  the  irrigation  district  tax 
against  the  same.  Such  tax  shall  be  collected  and  accounted 
for  in  the  same  manner  as  other  municipal  taxes  and  the  col- 
lection thereof  enforced  in  the  same  manner  as  the  other  taxes 
of  the  county.  In  case  of  neglect  or  refusal  of  the  board  of 
directors  to  cause  such  assessment  and  levy  to  be  made,  as  in 
this  act  provided,  then  the  assessment  and  levy  herein  pro- 


104  WATER  LAWS  OF  THE  STATE  OF  OREGON 

vided  for  shall  be  made  and  equalized  by  the  county  court  of 
the  county  in  which  the  office  of  the  board  of  directors  is 
situated,  sitting  for  the  transaction  of  county  business,  at  the 
same  time  that  said  court  levies  county  taxes,  and  in  the  same 
manner  with  like  effect  that  the  board  of  directors  is  required 
to  make  the  same,  and  all  expenses  incident  thereto,  shall  be 
borne  by  such  district,  and  such  levy  and  assessment  shall  be 
entered  on  the  county  tax  roll,  by  the  county  clerk,  in  the 
manner  in  this  section  provided.  [L.  1895,  p.  24,  §  24 ;  L.  1909, 
c.  219,  p.  368,  §  6;  L.  1911,  c.  223,  p.  389;  L.  1913,  c.  197,  §  5.] 

The   1913   amendment   to   this  section  Cation    district    to    make    the    levy    and 

provides  that  the  assessment  roll  shall  assessment     according    to    the    method 

be    collected    in    the    same    manner    as  proscribed    prior    to    the    amendment    of 

other  taxes,   the  result  of  which  would  1913.       (Gibbons    v.     Hood    River-    Irr. 

be   that   funds   would   not    be   available  J)ist.   133   Pac.    772.) 

for  January  interest  on  the  bonds,  until  The  amendment  cannot  apply  to  ob- 

April,   and   the  July  interest,   until   No-  ligations   of    irrigation    districts   organ - 

vombor.       Held,    that    since    the    above  i/,ed     and     bonded     under     the     act     of 

amendment    would     impair    the    irriga-  ISii").   prior  to  said  amendments,  if  such 

lion   company's  contract   with   the  bond-  obligations    would    lie    affected    thereby, 

holders,    it    cannot    apply    to    the    bonds  landholders    are    entitled    to    have    the 

and    other    obligations    existing    at    the  terms    of    the    bonds    observed.       (Uib- 

time    of    its    enactment;    and    hence    a  &OH.V  v.   llnnd  River  Irr.  Dist.,  133  Pac. 

peremptory     writ     of     mandamus     will  772.) 
issue  to  compel  the  officers  of  the  irri- 

§  6193.  Taxation  to  Pay  Indebtedness  to  United  States — Proceeding's 
to  Be  in  Compliance  With  Provisions  of  Federal  Statute. 

Whenever  any  amount  of  money  shall  have  been  advanced 
by  the  United  States  of  America  for  the  construction  of  irriga- 
tion works,  contemplated  under  the  provisions  of  this  act, 
by  the  authority  of  said  act  of  Congress,  the  taxing  powers  of 
the  district,  as  provided  in  this  act,  shall  be  used  and  exercised 
to  repay  into  the  treasury  of  the  United  States  of  America  the 
amount  of  money  so  advanced  in  the  manner  contemplated 
in  this  act,  and  as  provided  by  said  act  of  Congress  and  the 
rules  and  regulations  thereunder,  and  any  contract  made  in 
compliance  therewith  between  the  directors  of  said  district 
and  the  United  States  of  America ;  and  such  levies  and  assess- 
ments shall  be  made  each  year  under  the  authority  of  the 
district  as  will  return  to  the  treasury  of  the  United  States  of 
America  the  amount  or  proportion  of  such  money  advanced  as 
may  have  been  agreed  to  in  such  contract;  and  all  canals, 
works,  and  property  constructed  or  acquired  under  this  act 
and  said  act  of  Congress  and  such  contract  with  the  United 
States  of  America  shall  be  owned,  controlled,  operated,  and 
administered  and  water  distributed  thereby  and  therefrom  in 
the  manner,  in  the  quantity  or  quantities,  to  the  person  or 
persons,  and  in  all  respects  in  accordance  and  compliance  with 
the  provisions  of  said  act  of  Congress  and  the  rules  and  regu- 
lations thereunder.  [L.  1909,  c.  219,  p.  369,  §  7.] 


WATER  LAWS  OP  THE  STATE  OF  OREGON  105 

§  6202.  Prima  Facie  Evidence  of  Assessment,  What  Is. 

The  assessment  and  apportionment  made  by  the  board  of 
directors  as  in  this  act  provided,  is  prima  facie  evidence  that 
all  of  the  requirements  of  the  law,  in  relation  thereto,  have 
been  complied  with,  and  that  the  same  are  liens  against  the 
property,  to  the  same  extent  as  other  taxes  lawfully  levied. 
[L.  1895,  p.  28,  §  33;  L.  1913,  c.  197,  §  6.] 

§  6203.  Misnomer  of  Owner  Does  Not  Affect  Sale. 

When  land  is  sold  for  assessments  correctly  imposed  as  the 
property  of  a  particular  person,  no  misnomer  of  the  owner, 
or  supposed  owner,  or  other  mistake  relating  to  the  ownership 
thereof,  affects  the  sale  or  renders  it  void  or  voidable.  [L.  1895, 
p.  28,  §  34;  B.  &  C.  §  4733.] 

§  6205.  Payment  of  Coupons — Redemption  of  Bonds. 

Upon  the  presentation  of  the  coupons  due  to  the  treasurer, 
he  shall  pay  the  same  from  said  bond  fund.  Whenever,  after 
ten  years  from  the  issuance  of  said  bonds,  said  fund  shall 
amount  to  the  sum  of  $10,000,  the  board  of  directors  may 
direct  the  treasurer  to  pay  such  an  amount  of  said  bonds  not 
due  as  the  money  in  said  fund  will  redeem  at  the  lowest  value 
at  which  they  may  be  offered  for  liquidation,  after  advertising 
for  at  least  four  weeks  in  some  newspaper  published  in  the 
county,  and  in  any  other  newspaper  which  said  board  may 
deem  advisable,  for  sealed  proposals  for  the  redemption  of 
said  bonds.  Said  proposals  shall  be  opened  by  the  board  in 
open  meeting,  at  a  time  to  be  named  in  the  notice,  and  the 
lowest  bids  for  said  bonds  must  be  accepted;  provided,  that 
no  bond  shall  be  redeemed  at  a  rate  above  par.  In  case  the 
bids  are  equal,  the  lowest  numbered  bond  shall  have  the 
preference.  In  case  none  of  the  holders  of  said  bonds  shall 
desire  to  have  the  same  redeemed,  as  herein  provided  for,  said 
money  shall  be  invested  by  the  treasurer,  under  the  direction 
of  the  board,  in  United  States  gold-bearing  bonds  or  the  bonds 
of  the  State,  which  shall  be  kept  in  said  "bond  fund,"  and 
may  be  used  to  redeem  said  district  bonds  whenever  the  holders 
thereof  may  desire.  [L.  1895,  p.  28,  §  36;  B.  &  C.  §  4735.] 

§  6206.  Advertising  Proposals  for  Work — Letting  Contract. 

After  adopting  a  plan  for  said  canal  or  canals,  storage 
reservoirs  and  works,  the  board  of  directors  shall  give  notice, 
by  publication  thereof  not  less  than  once  a  week  for  three 
successive  weeks  in  one  newspaper  published  in  each  of  the 
counties  composing  the  district  (provided  a  newspaper  is 
published  therein)  and  in  such  other  newspaper  as  they  may 
deem  advisable,  calling  for  bids  for  the  construction  of  such 


106  WATER  LAWS  OF  THE  STATE  OF  OREGON 


works,  or  of  any  portion  thereof;  if  less  than  the  whole  work  is 
advertised,  then  the  portion  so  advertised  must  be  particularly 
described  in  such  notice.  Said  notice  shall  set  forth  that  plans 
and  specifications  can  be  seen  at  the  office  of  the  board,  and 
that  the  board  will  receive  sealed  proposals  therefor,  and  that 
the  contract  will  be  let  to  the  lowest  responsible  bidder,  stating 
the  time  and  place  for  opening  said  proposals,  which,  at  the 
the  time  and  place  appointed,  shall  be  opened  in  public ;  and  as 
soon  as  convenient  thereafter  the  board  shall  let  said  work, 
either  in  portions  or  as  a  whole,  to  the  lowest  responsible 
bidder;  or  they  may  reject  any  or  all  bids  and  re-advertise  for 
proposals,  or  may  proceed  to  construct  the  work  under  their 
own  superintendence.  Contracts  for  the  purchase  of  materials 
shall  be  awarded  to  the  lowest  responsible  bidder.  Any  person 
or  persons  to  whom  a  contract  may  be  awarded  shall  enter  into 
a  bond,  with  good  and  sufficient  sureties,  to  be  approved  by  the 
board,  payable  to  said  district  for  its  use,  for  twenty-five  per 
cent  of  the  amount  of  the  contract  price,  conditioned  for  the 
faithful  performance  of  said  contract.  The  work  shall  be  done 
under  the  direction  and  to  the  satisfaction  of  a  competent  irri- 
gation engineer  who  shall  be  employed  by  the  board  on  such 
basis  of  compensation  as  the  board  may  determine,  and  such 
work,  when  completed,  shall  be  approved  by  the  board.  [L. 
1895,  p.  29,  §  37;  B.  &  C.  §  4736;  L.  1911,  c.  223,  p.  390] 

§  6207.  Claims,  When  and  How  Paid — Treasurer  to  Report. 

No  claim  shall  be  paid  by  the  treasurer  until  allowed  by 
the  board,  and  only  upon  a  warrant  signed  by  the  president 
and  countersigned  by  the  secretary;  provided,  that  the  board 
may  draw  from  time  to  time  from  the  construction  fund,  and 
deposit  in  the  county  treasury  of  the  county  where  the  office 
of  the  board  is  situated,  any  sum  in  excess  of  the  sum  of 
$5,000.  The  county  treasurer  of  said  county  is  hereby  author- 
ized and  required  to  receive  and  receipt  for  the  same,  and 
place  the  same  to  the  credit  of  said  district,  and  he  shall  be 
responsible  upon  his  official  bond  for  the  safekeeping  and 
disbursement  of  the  same,  as  in  this  act  provided.  He  shall 
pay  out  the  same,  or  any  portion  thereof,  to  the  treasurer  of 
the  district  only,  and  only  upon  the  order  of  the  board,  signed 
by  the  president  and  attested  by  the  secretary.  The  said  county 
treasurer  shall  report,  in  writing,  on  the  second  Monday  in 
each  month,  the  amount  of  money  in  the  county  treasury,  the 
amount  of  receipts  for  the  month  preceding,  and  the  amount 
or  amounts  paid  out;  said  report  shall  be  verified  and  filed 
with  the  secretary  of  the  board.  The  district  treasurer  shall 
also  report  to  the  board,  in  writing,  on  the  first  Monday  in 
each  month,  the  amount  of  money  in  the  district  treasury, 


WATER  LAWS  OF  THE  STATE  OF  OREGON  107 


the  amount  of  receipts  for  the  month  preceding,  and  the 
amount  and  items  of  expenditures,  and  said  report  shall  be 
verified  and  filed  wtih  the  secretary  of  the  board.  [L.  1895, 
p.  29,  §38;B.  &  C.  §4737.] 

§  6208.  From  What  Funds  Different  Expenditures  Paid. 

For  the  purpose  of  defraying  the  expenses  of  the  organ- 
ization of  the  district,  including  attorney  fees,  and  of  the 
care,  operation,  management,  repair  and  improvement  of  such 
portion  of  said  canals  and  works  as  are  completed  and  in  use, 
including  the  salaries  of  officers  and  employees,  and  for  the 
raising  of  money  for  the  purpose  of  making  surveys  to  ascer- 
tain the  most  feasible  plans  for  the  construction  of  any  works 
authorized  by  this  act,  the  board  may  either  fix  rates  of  toll 
and  charges,  and  collect  the  same  from  all  persons  using  said 
canal  for  irrigation  and  other  purposes,  or  they  may  provide 
for  the  payment  therefor,  or  by  both  said  tolls  and  assessments ; 
if  by  the  latter  method,  such  levy  shall  be  made  on  the  comple- 
tion and  equalization  of  the  assessment  roll,  and  the  board 
shall  have  the  same  powers  and  functions  for  the  purposes  of 
said  levy  as  are  now  possessed  by  the  county  court  of  this 
State.  The  procedure  for  the  collection  of  assessments  by  such 
levy  shall  in  all  respects  conform  to  the  provisions  of  this  act 
relating  to  the  payment  of  principal  and  interest  of  bonds 
herein  provided  for,  except  that  such  assessments  may  be  made 
due  and  payable  at  any  time  fixed  by  the  board  of  directors,  in 
which  case  such  assessments  become  delinquent  upon  the 
expiration  of  ten  days  from  the  date  such  assessments  are  made 
due  and  payable,  provided,  that  where  such  assessments  are 
made  payable  at  any  time  other  than  that  fixed  for  the  pay- 
ment of  the  annual  assessments,  the  same  procedure  for  the 
equalization  thereof  shall  apply  as  is  otherwise  herein  pro- 
vided, except  that  ten  days'  notice  of  the  time  fixed  for  the 
equalization  of  the  assessment  roll  shall  be  given  by  publication 
in  a  newspaper  published  in  the  county  in  which  the  land  is 
situated,  or,  if  situated  in  more  than  one  county,  then  in  each 
county  thereof.  [L.  1895,  p.  30,  §  39;  B.  &  C.  §  4738;  L.  1911, 
c.  223,  p.  391.] 

§  6209.  Roads  and  Water  Ways  May  Be  Crossed— Rights  Over  State 

Lands  Dedicated. 

The  board  of  directors  shall  have  power  to  construct  the 
said  works  across  any  stream  of  water,  water  course,  street, 
avenue,  highway,  railway,  canal,  ditch,  or  flume  which  the 
route  of  said  canal  or  canals  may  intersect  or  cross,  in  such 
manner  as  to  afford  security  for  life  and  property;  but  said 
board  shall  restore  the  same,  when  so  crossed  or  intersected, 
to  its  former  state  as  near  as  may  be,  or  in  a  sufficient  man- 


108  WATER  LAWS  OF  THE  STATE  OF  OREGON 

ner  not  to  have  impaired  unnecessarily  its  usefulness;  and 
every  company  whose  railroad  shall  be  intersected  or  crossed 
by  said  works  shall  unite  with  said  board  in  forming  said 
intersections  and  crossings,  and  grant  the  privileges  afore- 
said; and  if  such  railroad  company  and  said  board,  or  the 
owners  and  controllers  of  the  said  property,  thing,  or  fran- 
chise so  to  be  crossed,  cannot  agree  upon  the  amount  to  be 
paid  therefor,  or  the  points  or  the  manner  of  said  crossings 
or  intersections,  the  same  shall  be 'ascertained  and  determined 
in  all  respects  as  is  herein  provided  in  respect  to  the  taking 
of  land.  The  right  of  way  is  hereby  given,  dedicated,  and 
set  apart  to  locate,  construct,  and  maintain  said  works  over 
and  through  any  of  the  lands  which  are  now  or  may  be  the 
property  of  this  State ;  and  also  there  is  given,  dedicated,  and 
set  apart,  for  the  uses  and  purposes  aforesaid,  all  waters  and 
water  rights  belonging  to  this  State  within  the  district. 
[L.  1895,  p.  30,  §  40;  B.  &  C.  §  4739.] 

§  6210.  Compensation  of  Members  of  Board  and  Other  Officers. 

The  board  of  directors  shall  each  receive  $3.00  per  day 
and  mileage  at  the  rate  of  ten  cents  per  mile,  in  attending 
meetings,  and  actual  and  necessary  expenses  paid  while 
engaged  in  official  business  under  the  order  of  the  board. 
The  board  shall  fix  the  compensation  to  be  paid  to  the  other 
officers  named  in  the  act,  to  be  paid  out  of  the  treasury  of 
the  district;  provided,  the  said  board  shall,  upon  the  petition 
of  at  least  fifty,  or  a  majority,  of  the  freeholders  within  such 
district  therefor,  submit  to  the  electors  at  any  general  election 
a  schedule  of  salaries  and  fees  to  be  paid  thereunder.  Such 
petition  must  be  presented  to  the  board  twenty  days  prior  to 
a  general  election,  and  the  result  of  such  election  shall  be 
determined  and  declared  in  all  respects  as  other  elections  are 
determined  and  declared  under  this  act.  [L.  1895,  p.  31,  §  41 ; 
B.  &  C.  §  4740.] 

§  6211.  Directors  and  Officers  Not  to  Be  Interested  in  Contract — 
Penalty. 

No  director  or  any  other  officer  named  in  this  act  shall 
in  any  manner  be  interested,  directly  or  indirectly,  in  any 
contract  awarded  or  to  be  awarded  by  the  board,  or  in  the 
profits  to  be  derived  therefrom ;  and  for  any  violation  of  this 
provision  such  officer  shall  be  deemed  guilty  of  a  misdemeanor, 
and  such  conviction  shall  work  a  forfeiture  of  his  office,  and 
he  shall  be  punished  by  a  fine  not  exceeding  $500  or  by 
imprisonment  in  the  county  jail  not  exceeding  six  months,  or 
by  both  such  fine  and  imprisonment.  [L.  1895,  p.  31,  §  42; 
B.  &  C.  §  4741.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  109 

§  6212.  Special  Elections  for  Special  Assessments. 

The  board  of  directors  may,  at  any  time  when  in  their 
judgment  it  may  be  advisable,  call  a  special  election  and  submit 
to  the  qualified  electors  of  the  district,  the  question  whether 
or  not  a  special  assessment  shall  be  levied  for  the  purpose  of 
raising  money  to  be  applied  to  any  of  the  purposes  provided 
in  this  act.  Such  election  must  be  called  upon  the  notice 
prescribed,  and  the  same  shall  be  held  and  the  result  thereof 
determined  and  declared  in  all  respects  in  conformity  with  the 
provisions  of  Section  6182.  The  notice  must  specify  the 
amount  of  money  proposed  to  be  raised  and  the  purpose  for 
which  it  is  intended  to  be  used.  At  such  election  the  ballots 
shall  contain  the  [words]  "Assessment — Yes,"  "Assessment — 
No."  If  two-thirds  or  more  of  the  votes  cast  are  "Assessment 
—Yes,"  the  board  shall  at  the  time  of  the  annual  levy  here- 
under,  levy  an  assessment  sufficient  to  raise  the  amount  voted. 
The  assessment  so  determined  upon  shall  become  a  part  of  the 
total  assessment  provided  for  in  Section  6186  and  shall  be 
collected  as  a  part  thereof.  [L.  1895,  p.  31,  §  43;  L.  1913,  c. 
197,  §  7.] 

§  6213.  Power  to  Create  Indebtedness  Limited. 

The  board  of  directors  and  other  officers  of  the  district 
shall  have  no  power  to  incur  any  debt  or  liability  whatever, 
either  by  issuing  bonds  or  otherwise,  in  excess  of  the  express 
provisions  of  this  act,  and  in  no  event  shall  the  board  of 
directors  incur  any  indebtedness  in  excess  of  $200  per  acre 
in  the  aggregate  of  the  land  situated  in  the  district  and  any 
debt  or  liability  incurred  in  excess  of  such  express  provisions 
shall  be  and  remain  absolutely  void ;  except  that,  for  the  pur- 
pose of  organization,  or  for  any  of  the  purposes  of  this  act, 
the  board  of  directors  may,  before  the  collection  of  the  first 
assessment,  incur  indebtedness  not  exceeding  $1  per  acre  on 
each  acre  of  land  situated  within  such  district  and  may  cause 
warrants  of  the  district  to  issue  therefor,  bearing  interest  at 
seven  per  cent  per  annum.  [L.  1895,  p.  32,  §  44;  L.  1911, 
c.  223;  L.  1913,  c.  17,  p.  54.] 

Section  14.  That  two  or  more  irrigation  districts  organ- 
ized under  the  laws  of  this  State  or  of  any  adjoining  state  may 
unite  in  the  purchase,  acquisition  or  construction  of  an  irriga- 
tion system  or  works  for  the  irrigation  of  the  land  within  said 
respective  irrigation  districts ;  and  in  such  case,  said  irrigation 
districts  are  hereby  jointly  granted  the  same  power  of  con- 
demnation as  is  now  possessed  by  one  district  alone;  and  in 
such  case  the  cost  of  purchase,  acquisition  or  construction 
of  such  irrigation  system  shall  be  apportioned  to  each  district 
in  proportion  to  the  acreage  in  each  district  for  which  water 


110  WATER  LAWS  OF  THE  STATE  OF  OREGON 


shall  be  provided  and  that  such  joint  works  shall  be  owned 
jointly  in  proportion  to  such  respective  acreage;  thai  a  joint 
commission  not  exceeding  seven  in  number  shall  be  chosen  by 
the  board  of  directors  of  the  respective  irrigation  districts,  the 
members  of  which  shall  be  apportioned  to  each  district  as 
nearly  as  practicable  in  accordance  with  the  acreage  for  which 
water  shall  be  provided  in  each  respective  district;  that  said 
commission  shall  control  and  manage  such  joint  works  subject 
to  the  board  of  directors  of  the  respective  districts,  and  each 
member  of  such  commission  shall  hold  office  at  the  will  of  the 
board  of  directors  of  the  district  appointing  him.  [L.  1911, 
c.  223.] 

Section  15.  Any  irrigation  district  heretofore  organized  or 
hereafter  to  be  organized  may,  whenever  it  appears  necessary, 
proper  or  beneficial  to  drain  any  of  the  lands  within  said  dis- 
trict, whether  for  the  benefit  of  the  lands  actually  requiring 
drainage,  or  for  the  protection  of  other  lands  within  said  dis- 
trict, whether  the  irrigation  works  have  been  actually  acquired 
or  constructed,  or  not,  cause  drainage  canals  and  works  to  be 
constructed ;  and  to  this  end,  such  district  shall  in  all  respects 
have  the  same  power  and  authority  as  is  now  conferred  or  may 
hereafter  be  conferred  respecting  irrigation,  and  all  powers  in 
this  act  conferred  upon  irrigation  districts  with  respect  to 
irrigation  shall  be  construed  to  include  drainage.  [L.  1911, 
c.  223.] 

Section  16.  The  boundaries  of  any  irrigation  district 
organized  under  the  provisions  of  this  act  may  be  changed  in 
the  manner  herein  prescribed;  but  such  change  of  the  bound- 
aries of  the  district  shall  not  impair  or  affect  its  organization, 
or  its  right  in  or  to  property,  or  any  of  the  rights  or  privileges 
of  whatever  kind  or  nature,  nor  shall  it  affect,  impair  or  dis- 
charge any  contract,  obligation,  lien  or  charge  for  or  upon 
which  it  was  liable  or  chargeable  had  such  change  of  its 
boundaries  not  been  made.  [L.  1911,  c.  223.] 

Section  17.  The  holder  or  holders  of  title,  or  evidence  of 
title,  representing  a  majority  of  the  acreage  of  any  body  of 
land  adjacent  to  the  boundaries  of  any  irrigation  district,  may 
file  with  the  board  of  directors  of  said  district  a  petition  in 
writing,  praying  that  such  lands  be  included  in  such  district. 
The  petition  shall  describe  the  tracts,  or  body  of  land  owned 
by  the  petitioner  in  manner  and  form  as  prescribed  in  this  act 
for  original  petitions  for  the  formation  of  an  irrigation  district. 
Such  petition  shall  be  deemed  to  give  assent  of  the  petitioners 
to  the  inclusion  in  said  district  of  the  lands  described  in  the 
petition,  and  such  petition  must  be  acknowledged  in  the  same 


WATER  LAWS  OF  THE  STATE  OP  OREGON  111 

manner  that  conveyances  of  land  are  required  to  be  acknowl- 
edged.    [L.  1911,  c.  223.] 

In    enlarging-    the    boundaries    of    the  aries   as   fully    and    completely    as   any 

district    by    taking    in    adjacent    terri-  survey  or  description  could  possibly  do. 

tory,    the    description    thereof   by    legal  (Directors  of  Payette-Oregon  Slope  Irr. 

subdivisions    of    the    U.    S.    government  Dist.  v.  Peterson,  128  Pac.   837.) 
survey    discloses    the    enlarged    bound- 

Section  18.  The  secretary  of  the  board  of  directors  shall 
cause  notice  of  the  filing  of  such  petition  to  be  given  and 
published  once  each  week  for  three  successive  weeks,  in  a 
newspaper  published  in  the  county  where  the  office  of  said 
board  is  situate,  which  notice  shall  state  the  filing  of  such 
petition  and  the  names  of  the  petitioners,  a  description  of  the 
lands  mentioned  in  sa'd  petition  and  the  prayer  of  said  peti- 
tioners ;  giving  notice  to  all  persons  interested,  to  appear  at  the 
office  of  said  board  at  a  time  named  in  said  notice,  and  show 
cause,  if  any  they  have,  why  the  petition  should  not  be  granted. 
The  time  specified  in  the  notice  at  which  it  shall  be  required  to 
show  cause  shall  be  the  regular  meeting  of  the  board  next  after 
the  expiration  of  the  time  for  the  publication  of  the  notice. 
The  petitioner  or  petitioners  shall  advance  to  the  secretary 
sufficient  money  to  pay  the  estimated  cost  of  all  proceedings 
under  such  petition  before  the  secretary  shall  be  required  to 
give  notice.  [L.  1911,  c.  223.] 

Section  19.  The  board  of  directors,  at  the  time  and  place 
mentioned  in  said  notice,  or  at  such  time  or  times  to  which  the 
hearing  of  said  petition  may  adjourn,  shall  proceed  to  hear  the 
petition  and  all  objections  thereto,  presented  in  writing  by  any 
person,  showing  cause  as  aforesaid,  why  said  petition  should 
not  be  granted.  The  failure  of  any  person  interested  to  show 
cause,  as  aforesaid,  shall  be  deemed  and  taken  as  an  assent  on 
his  part  to  the  inclusion  of  such  land  in  said  district  as  prayed 
for  in  said  petition.  [L.  1911,  c.  223.] 

Section  20.  The  board  of  directors,  to  whom  such  petition 
is  presented,  may  require  as  a  condition  precedent  to  the  grant- 
ing of  the  same,  that  the  petitioners  shall  severally  pay,  con- 
tract to  pay  or  become  liable  for,  under  bond  issue  or  other 
form  of  indebtedness  incurred  or  that  may  be  incurred  by  the 
district,  to  such  district  such  respective  sums,  as  nearly  as  the 
same  can  be  estimated  by  the  board,  as  said  petitioners  or  their 
grantors  would  have  been  required  to  pay  to  such  district  as 
assessments  for  the  payment  of  its  pro  rata  share  of  all  bonds 
and  the  interest  thereon,  which  may  have  previously  thereto 
been  issued  by  said  district  had  such  lands  been  included  in 
said  district  at  the  time  the  same  was  originally  formed  or 
when  said  bonds  were  so  issued.  [L.  1911,  c.  223.] 

Section  21.  The  board  of  directors  if  they  deem  it  not  for 
the  best  interests  of  the  district  to  include  therein  the  lands 


112  WATER  LAWS  OF  THE  STATE  OF  OREGON 

mentioned  in  the  petition,  shall  by  order  reject  the  said  peti- 
tion, but  if  they  deem  it  for  the  best  interest  of  the  disrict  that 
said  lands  or  any  part  thereof  be  included  the  board  may  order 
that  the  district  be  so  changed  as  to  include  therein  the  lands 
or  any  part  thereof  mentioned  in  the  said  petition.  But  said 
board  of  directors  in  making  any  such  change  in  the  bound- 
aries of  any  such  district  shall  not  include  therein  the  lands 
of  any  owner  or  owners  objecting  thereto,  without  calling  an 
election  in  the  district  proposed  to  be  included,  in  which  shall 
be  submitted  the  questions  of  "Inclusion — Yes,"  and  "Inclusion 
—No,"  which  shall  be  conducted  in  the  same  manner  as  the 
election  for  the  organization  of  an  irrigation  district  is  now 
conducted,  the  irrigation  district  having  the  same  powers  as 
now  conferred  upon  the  county  court  in  respect  thereto  and 
which  election  shall  be  decided  by  three-fifths  of  the  vote  cast. 
The  order  shall  describe  the  entire  boundaries  of  the  district 
with  the  lands  so  included,  if  the  district  boundaries  be 
changed  thereby,  and  for  the  purpose  the  board  may  cause  a 
survey  to  be  made  of  such  portion  of  such  boundaries  as  may 
be  deemed  necessary.  [L.  1911,  c.  223.] 

Section  22.  Upon  the  allowance  of  such  petition  and  in  case 
no  protest  has  been  filed  with  the  board  within  thirty  days 
after  the  entry  of  said  order  as  aforesaid,  a  certified  copy  of 
the  order  of  the  board  of  directors  making  such  change  shall  be 
filed  for  record  in  the  office  of  the  county  clerk  of  each  county 
in  which  are  situate  any  of  the  lands  of  the  district,  and  the 
district  shall  remain  an  irrigation  district,  as  fully  to  every 
intent  and  purpose  as  if  the  lands  which  are  included  in  the 
district  by  the  change  of  the  boundaries  as  aforesaid,  had  been 
included  therein  at  the  organization  of  the  district;  and  said 
district  as  so  changed  and  all  the  lands  therein  shall  be  liable 
for  all  existing  obligations  and  indebtedness  of  the  organized 
district.  From  action  on  said  protest  an  appeal  may  be  taken 
in  the  same  manner  as  is  provided  in  case  of  proceedings 
affecting  the  organization  of  a  district,  and  in  the  event  said 
protest  be  not  made  within  thirty  days  and  appeal  taken  to  the 
circuit  court  from  action  on  said  protest  within  thirty  days 
after  final  hearing,  said  orders  of  incluison  shall  be  deemed 
lawful  and  conclusive  against  all  persons  whomsoever  and 
thereafter  shall  not  be  in  any  manner  questioned  in  any  pro- 
ceeding. [L.  1911,  c.  223.] 

Section  23.  Upon  the  filing  of  the  copies  of  the  order,  as 
in  the  last  preceding  section  mentioned,  the  secretary  shall 
record  in  the  minutes  of  the  board  the  petition  aforesaid;  and 
the  said  minutes,  or  a  certified  copy  thereof,  shall  be  admissible 
in  evidence  with  the  same  effect  as  the  petition.  [L.  1911, 
c.  223.] 


WATER  LAWS  OF  THE  STATE  OP  OREGON  113 


Section  24.  In  case  of  the  inclusion  of  any  land  within  any 
district  by  proceedings  under  this  act  the  board  of  directors 
shall,  at  least  thirty  days  prior  to  the  next  succeeding  general 
election,  make  an  order  re-dividing  such  district  into  three  or 
five  divisions,  as  nearly  equal  in  size  as  may  be  practicable,  and 
one  director  shall  thereafter  be  elected  from  each  division,  as 
hereinbefore  provided.  [L.  1911,  c.  223.] 

Section  25.  The  boundaries  of  any  irrigation  district  now 
organized  or  hereafter  organized  under  the  provisions  of  this 
act,  may  be  changed,  and  tracts  of  land  which  were  included 
within  the  boundaries  of  such  district  at  or  after  its  organiza- 
tion under  the  provisions  of  said  act,  may  be  excluded  there- 
from, in  the  manner  herein  prescribed,  but  neither  such  change 
of  the  boundaries  of  the  district  nor  such  exclusion  of  lands 
from  the  district  shall  impair  or  affect  its  organization,  or  its 
right  in  or  to  property,  or  any  of  its  rights  or  privileges  of 
whatever  kind  or  nature;  nor  shall  it  affect,  impair,  or  dis- 
charge any  contract,  obligation,  lien,  or  charge  for  or  upon 
which  said  district  was  and  may  become  liable  or  chargeable, 
had  such  change  of  its  boundaries  not  been  made,  or  had  not 
such  land  been  excluded  from  the  district. 

(a)  The  owner  or  owners  in  fee  of  one  or  more  tracts  of 
land  which  constitute  a  portion  of  an  irrigation  district  may 
jointly  or  severally  file  with  the  board  of  directors  of  the  dis- 
trict a  petition,  praying  that  such  tract  or  tracts,  and  any  other 
tracts  contiguous  thereto,  may  be  excluded  and  taken  from  said 
district.    The  petition  shall  state  the  grounds  and  reason  upon 
which  it  is  claimed  that  such  lands  should  be  excluded  and  shall 
describe  the  boundaries  thereof,  and  also  the  lands  of  such 
petitioner  or  petitioners  which  are  included  within  such  bound- 
aries but  the  description   of  such  lands   need   not  be  more 
particular  or  certain  than   is   required  when  the  lands   are 
entered  in  the  assessment  book  by  the  county  assessor. 

(b)  The  secretary  of  the  board  of  directors  shall  cause  a 
notice  of  the  filing  of  such  petition  to  be  published  once  a  week 
for  at  least  two  weeks  in  some  newspaper  published  in  the 
county  where  the  office  of  the  board  of  directors  is  situated, 
and  if  any  portion  of  such  territory  to  be  excluded  lie  within 
another  county  or  counties,  then  said  notice  shall  be  so  pub- 
lished in  a  newspaper  published  within  each  of  said  counties. 
The  notice  shall  state  the  filing  of  the  petition,  the  names  of 
the  petitioners,  a  description  of  the  lands  mentioned  in  said 
petition,  and  the  prayer  of  said  petition ;  and  it  shall  notify  all 
persons  interested  in,  or  who  may  be  affected  by  such  change 
of  the  boundaries  of  the  district,  to  appear  at  the  office  of  said 
board  at  a  time  named  in  said  notice,  and  show  cause,  in  writ- 
ing, if  any  they  have,  why  the  change  of  the  boundaries  of  said 


114  WATER  LAWS  OP  THE  STATE  OF  OREGON 

district,  as  proposed  in  said  petition,  should  not  be  made.  The 
time  to  be  specified  in  the  notice  at  which  they  shall  be  required 
to  show  cause  shall  be  the  regular  meeting  of  the  board  next 
after  the  expiration  of  the  time  for  the  publication  of  the  notice. 

(c)  The  board  of  directors,  at  the  time  and  place  men- 
tioned in  the  notice,  or  at  the  time  or  times  to  which  the  hearing 
of  said  petition  may  be  adjourned,  shall  proceed  to  hear  the 
petition,  and  all  evidence  or  proofs  that  may  or  shall  be  intro- 
duced by  or  on  behalf  of  the  petitioner  or  petitioners,  and  all 
objections  to  such  petition  that  may  or  shall  be  presented  in 
writing  by  any  person  showing  cause  as  aforesaid,  and  all  evi- 
dence and  proofs  that  may  be  introduced  in  support  of  such 
objections.  The  failure  of  any  person  interested  in  said  district, 
(other  than  the  holders  of  bonds  thereof  outstanding  at  the 
time  of  the  filing  of  said  petition  with  said  board)   to  show 
cause,  in  writing,  why  the  tract  or  tracts  of  land  mentioned  in 
said  petition  should  not  be  excluded  from  said  district,  shall  be 
deemed  and  taken  as  an  assent  by  him  to  the  exclusion  of  such 
tract  or  tracts  of  land,  or  any  part  thereof,  from  said  district ; 
and  the  filing  of  such  petition  with  saM  board,  as  aforesaid, 
shall  be  deemed  and  taken  as  an  assent  by  each  and  all  of  such 
petitioners  to  the  exclusion  from  such  district  of  the  lands  men- 
tioned in  the  petition,  or  any  part  thereof.    The  expenses  of 
giving  said  notice  and  of  the  aforesaid  proceedings  shall  be 
paid  by  the  person  or  persons  filing  such  petition. 

(d)  If,  upon  the  hearing  of  any  such  petition,  no  evidence 
or  proofs  in  support  thereof  be  introduced,  or  if  the  evidence 
fail  to  sustain  said  petition,  or  if  the  board  deem  it  not  for  the 
best  interests  of  the  district  that  the  lands,  or  some  portion 
thereof,  mentioned  in  the  petition,  should  be  excluded  from  the 
district,  the  board  shall  order  that  said  petition  be  denied  as  to 
such  lands ;  but  if  the  said  board  deem  it  for  the  best  interests 
of  the  district  that  the  lands,  mentioned  in  the  petition,  or  some 
portion  thereof,  be  excluded  from  the  district,  and  if  no  person 
interested  in  the  district  show  cause,  in  writing,  why  the  said 
lands,  or  some  portion  thereof,  should  not  be  excluded  from  the 
district,  or  if,  having  shown  cause,  withdraws  the  same,  or 
upon  the  hearing  fails  to  establish  such  objections  as  he  may 
have  made,  then  it  shall  be  the  duty  of  the  board  to,  and  it  shall 
forthwith,    make    an    order    that    the    lands    mentioned    and 
described  in  the  petition,  or  some  defined  portion  thereof,  be 
excluded  from  said  district;  provided,  that  it  shall  be  the  duty 
of  said  board  to  so  order,  upon  petition  therefor,  as  aforesaid, 
that  all  lands  so  petitioned  to  be  excluded  from  said  district 
shall  be  excluded  therefrom  which  cannot  be  irrigated  from 
or  which  are  not  susceptible  to,  or  would  not,  by  reason  of 
being  permanently  devoted  to  uses  other  than  agricultural, 


WATER  LAWS  OF  THE  STATE  OF  OREGON  115 


horticultural,  viticultural  or  grazing,  be  directly  benefited  by 
the  actual  irrigation  of  the  same  from  a  common  source,  or  by 
the  same  system  of  works  with  the  other  lands  of  said  district, 
or  from  the  source  selected,  chosen,  or  provided,  or  the  system 
adopted  for  the  irrigation  of  the  lands  of  said  district,  or  which 
are  already  irrigated,  or  entitled  to  be  irrigated,  from  another 
source  or  by  another  system  of  irrigation  works. 

(e)  If  there  be  outstanding  bonds  of  the  district  at  the 
time  of  the  filing  of  said  petition,  the  holders  of  such  outstand- 
ing bonds  may  give  their  assent,  in  writing,  to  the  effect  that 
they  severally  consent  that  the  lands  mentioned  in  the  petition, 
or  such  portion  thereof  as  may  be  excluded  from  said  district  by 
order  of  said  board,  or  the  decree  of  the  circuit  court  as  here- 
inafter provided,  may  be  excluded  from  the  district;  and  if 
said  lands,  or  any  portion  thereof,  be  thereafter  excluded  from 
the  district,  the  lands  so  excluded  shall  be  released  from  the 
lien  of  such  outstanding  bonds.  The  assent  must  be  acknowl- 
edged by  the  several  holders  of  such  bonds  in  the  same  manner 
and  form  as  is  required  in  case  of  a  conveyance  of  land,  and 
the  acknowledgement  shall  have  the  same  force  and  effect  as 
evidence  as  the  acknowledgement  of  such  conveyance.  The 
assent  shall  be  filed  with  the  board,  and  must  be  recorded  in 
the  minutes  of  the  board;  and  said  minutes,  or  a  copy  thereof, 
certified  by  the  secretary  of  said  board,  shall  be  admissible 
in  evidence,  with  the  same  effect  as  the  said  assent,  and  such 
certified  copy  thereof,  may  be  recorded  in  the  office  of  the 
county  recorder  of  the  county  wherein  said  lands  are  situated. 

(/)  In  the  event  the  said  board  of  directors  shall  exclude 
any  lands  from  said  district  upon  petition  therefor,  it  shall 
be  the  duty  of  the  board  of  directors  to  make  an  entry  in  the 
minutes  of  the  board  describing  the  boundaries  of  the  district, 
should  the  exclusion  of  said  lands  from  said  district,  change 
the  boundaries  of  said  district,  and  for  that  purpose  the 
board  may  cause  a  survey  to  be  made  of  such  portions  of  the 
district  as  the  board  may  deem  necessary;  and  a  certified 
copy  of  the  entry  in  the  minutes  of  the  board  excluding  any 
land,  certified  by  the  secretary  of  the  board,  shall  be  filed  for 
record  in  the  recorder's  office  of  each  county  within  which  are 
situated  any  of  the  lands  of  the  district;  but  said  district, 
notwithstanding  such  exclusion,  shall  be  and  remain  an  irriga- 
tion district  as  fully,  to  every  intent  and  purpose,  as  it  would 
have  been  had  no  change  been  made  in  the  boundaries  of  the 
district,  or  had  the  lands  excluded  therefrom  never  constituted 
a  portion  of  the  district. 

(g)  If  the  lands  excluded  from  any  district  under  this  act 
shall  embrace  the  greater  portion  of  any  division  or  divisions 
of  such  district,  then  the  office  of  director  for  such  division 


116  WATER  LAWS  OP  THE  STATE  OF  OREGON 

or  divisions  shall  become  and  be  vacant  at  the  expiration  of 
ten  days  from  the  final  order  of  the  board  excluding  said  lands ; 
and  such  vacancy  or  vacancies  shall  be  filled  by  appointment 
by  the  county  court  of  the  county  where  the  office  of  such 
board  is  situated,  from  the  district  at  large.  A  director 
appointed  as  above  provided,  shall  hold  his  office  until  the  next 
regular  election  for  said  district,  and  until  his  successor  is 
elected  and  qualified. 

(h)  At  least  thirty  days  before  the  next  general  election  of 
such  district,  the  board  of  directors  thereof,  shall  make  an 
order  dividing  said  district  into  three  or  five  divisions  as  the 
case  may  require,  as  nearly  equal  in  size  as  may  be  practicable, 
which  shall  be  numbered  first,  second,  third,  and  so  on,  and 
one  director  shall  be  elected  by  each  division.  For  the  purpose 
of  elections  in  such  district,  the  said  board  of  directors  must 
establish  a  convenient  number  of  election  precincts,  and  define 
the  boundaries  thereof,  which  said  precincts  may  be  changed 
from  time  to  time,  as  the  board  of  directors  may  deem  neces- 
sary. Provided,  however,  that  this  section  shall  not  apply  to 
any  irrigation  district  organized  under  the  provisions  of  this 
act,  in  which  the  directors,  at  the  time  of  such  exclusion, 
shall  have  been  elected  by  the  district  at  large. 

(?)  Nothing  in  this  act  provided  shall,  in  any  manner, 
operate  to  release  any  of  the  lands  so  excluded  from  the  dis- 
trict from  any  obligation  to  pay,  or  any  lien  thereon,  of  any 
valid  outstanding  bonds,  or  other  indebtedness  of  said  district 
at  the  time  of  the  filing  of  said  petition  for  the  exclusion  of 
said  lands,  but  upon  the  contrary  said  lands  shall  be  held 
subject  to  said  lien,  and  answerable  and  chargeable  for  and 
with  the  payment  and  discharge  of  all  of  said  outstanding 
obligations  at  the  time  of  the  filing  of  the  petition  for  the 
exclusion  of  said  land,  as  fully  as  though  said  petition  for 
such  exclusion  were  never  filed  and  said  order  or  decree  of 
exclusion  never  made;  and  for  the  purpose  of  discharging 
such  outstanding  indebtedness,  said  lands  so  excluded  shall 
be  deemed  and  considered  as  part  of  said  irrigation  district 
the  same  as  though  said  petition  for  its  exclusion  had  never 
been  filed  or  said  order  or  decree  of  exclusion  never  made  and 
all  provisions  which  may  have  been  resorted  to,  to  compel 
the  payment  of  said  land  of  its  quota  or  portion  of  said  out- 
standing obligation,  had  said  exclusion  never  been  accom- 
plished, may,  notwithstanding  said  exclusion,  be  resorted  to 
to  compel  and  enforce  the  payment  on  the  part  of  said  land  of 
its  quota  or  portion  of  said  outstanding  obligations,  of  said 
irrigation  district  for  which  it  is  liable,  as  herein  provided. 
But  said  land  so  excluded  shall  not  be  held  answerable  or 
chargeable  for  any  obligation  of  any  nature  or  kind  whatever, 


WATER  LAWS  OF  THE  STATE  OP  OREGON  117 

incurred  after  the  filing"  with  the  board  of  directors  of  said 
district  of  the  petition  for  the  exclusion  of  said  lands  from 
the  sa:d  district;  provided,  that  the  provisions  of  this  section 
shall  not  apply  to  any  outstanding  bonds  or  other  obligations 
or  'ndebtedness  the  holders  of  which  have  assented  to  the 
exclusion  of  such  lands  from  said  district.  [L.  1911,  c.  223.] 

Section  26.  An  irrigation  district  may  be  united,  merged 
and  included  within  another  irrigation  district  by  the  board 
of  directors  causing  a  petition  showing  the  indebtedness  of 
such  district  and  the  boundaries  thereof  to  be  presented  to 
the  board  of  directors  of  the  irrigation  district  in  which  it  is 
desired  to  be  included,  which  petition  may  be  accepted  or 
rejected  by  such  board  of  directors  in  their  discretion;  if 
accepted,  an  election  shall  be  ordered  by  such  board  of  directors 
in  the  district  desiring  to  be  included,  in  which  shall  be  sub- 
mitted the  questions  "Merger — Yes"  and  "Merger — No," 
which  questions  shall  be  determined  by  a  majority  vote  of  the 
qualified  voters,  and  which  election  shall  be  conducted  in  the 
same  manner  as  election  for  the  organization  of  an  irrigation 
district;  and  such  board  of  directors  shall  have  the  same 
powers  and  authority  in  conducting  same  as  now  possessed 
by  the  county  court  in  organizing  an  irrigation  district.  In  the 
event  that  the  vote  is  "Merger — Yes"  the  indebtedness  of  each 
district  shall  be  determined  and  entered  upon  the  records  and 
a  division  of  such  indebtedness  ordered  and  shall  be  binding 
in  the  future,  and  thereafter  such  districts  shall  be  and  become 
one  district  and  the  lands  therein  included  to  the  same  extent 
and  effect  in  all  respects  as  if  originally  included.  [L.  1911, 
c.  223.] 

Section  27.  Whenever  a  majority  of  the  bona  fide  owners 
of  land  in  any  irrigation  district  heretofore  organized,  or 
hereafter  to  be  organized,  under  this  act,  shall  petition  the 
board  of  directors  to  call  a  special  election,  for  the  purpose 
of  submitting  to  the  qualified  voters  of  said  irrigation  district 
a  proposition  to  vote  on  the  dissolution  of  said  irrgation 
district,  setting  forth  in  said  petition  that  all  bills,  obligations, 
and  claims  of  every  nature  whatsoever  against  said  district 
have  been  fully  satisfied  and  paid,  it  shall  be  the  duty  of  said 
directors,  if  they  shall  be  satisfied  that  all  claims,  obligations 
and  bills  have  been  fully  paid,  satisfied  and  cancelled  to  call 
an  election,  setting  forth  the  object  of  the  said  election  and 
to  cause  notice  of  said  election  to  be  published  in  some  news- 
paper in  each  of  the  counties  or  county  in  which  said  district 
is  located,  for  a  period  of  thirty  (30)  days  prior  to  said  elec- 
tion, setting  forth  the  time  and  place  for  holding  said  election 
in  each  of  the  voting  precincts  in  said  districts.  It  shall  also 
be  the  duty  of  the  directors  to  prepare  ballots  to  be  used  at 

Sigr.  9 


118  WATER  LAWS  OF  THE  STATE  OF  OREGON 

said  election,  on  which  shall  be  writen  or  printed  the  words, 
"For  Dissolution— Yes,"  and  "For  Dissolution— No."  [L.  1911, 
c.  223.] 

Section  28.  The  board  of  directors  shall  name  a  day  for 
canvassing  the  vote,  and  if  it  shall  appear  that  sixty  per  cent 
of  said  ballots  contain  the  words  "For  Dissolution — Yes," 
then  it  shall  be  the  duty  of  said  board  of  directors  to  declare 
said  district  to  be  disorganized  and  dissolved  and  shall  certify 
to  the  county  clerk  of  the  respective  counties  in  which  the 
district  is  situated,  stating  the  number  of  signers  of  said 

petition.  That  the  election  was  called  and  set  for  said- 

day  of (month)  of ..(year).  That  said 

election  was  held  and  that  so  many  votes  (stating  the  number) 
had  been  cast  for,  and  that  so  many  votes  (stating  number) 
had  been  cast  against  said  proposition,  said  certificates  to 
bear  the  seal  of  the  district,  and  the  signature  of  the  president 
and  secretary  of  said  board  of  directors  and  in  such  event 
such  district  shall  then  be  legally  dissolved.  And  it  shall  be 
the  duty  of  the  said  respective  clerks  to  record  all  such 
certificates  in  the  records  of  the  respective  counties.  Should 
it  appear  that  forty  per  cent  of  the  votes  cast  at  said  election 
were  "For  Dissolution — No,"  then  the  board  of  directors  shall 
declare  the  proposition  lost,  and  shall  cause  the  result  and  the 
vote  to  be  made  a  part  of  the  records  of  said  irrigation  district, 
unless  an  appeal  be  taken  to  the  circuit  court  within  sixty 
days  from  the  date  of  the  order  declaring  said  district  dis- 
solved, such  dissolution  shall  be  final  and  it  shall  be  conclu- 
sively presumed  that  said  district  was  regularly  dissolved. 
[L.  1911,  c.  223.] 

Section  29.  The  board  of  directors  of  an  irrigation  dis- 
trict organized  under  the  provisions  of  this  act,  may,  by  Deti- 
tion,  commence  special  proceedings  in  the  circuit  court  of  the 
county  in  which  the  office  of  such  district  is  located,  for  the 
purpose  of  having  a  judicial  examination  and  judgment  of  the 
court  as  to  the  regularity  and  legality  of  the  proceedings  of  the 
said  board  and  of  sa:d  district  providing  for  and  authorizing 
the  issue  and  sale  of  the  bonds  of  said  district,  whether  said 
bonds  or  any  of  them  have  or  have  not  been  sold,  or  disposed 
of.  [L.  1911,  c.  223.] 

Section  30.  The  court  shall  fix  the  time  for  the  hearing  of 
said  petition  and  shall  order  the  clerk  of  the  court  to  give 
and  publish  a  notice  of  the  filing  of  said  petition.  The  notice 
shall  be  given  and  published  for  three  successive  weeks  in  a 
newspaper  published  in  the  county  where  the  office  of  the 
district  is  situated.  The  notice  shall  state  the  time  and  place 
fixed  for  the  hearing  of  the  petition  and  the  prayer  of  the 
petitioners,  and  that  any  person  interested  in  the  organization 


WATER  LAWS  OF  THE  STATE  OF  OREGON  119 

of  said  district,  or  in  the  proceedings  for  the  issue  or  sale 
of  said  bonds,  may  on  or  before  the  day  fixed  for  the  hearing 
of  said  petition,  demur  to  or  answer  said  petition.  The  petition 
may  be  referred  to  and  described  in  said  notice  as  the  petition 

of  the  board  of  directors  of irrigation  district, 

(giving  the  name),  praying  that  the  proceedings  of  the  issue 
and  sale  of  said  bonds  of  said  district  may  be  examined, 
approved  and  confirmed  by  the  court.  Any  person  interested 
in  said  district,  or  in  the  issue  of  said  bonds  may  demur  to  or 
answer  said  petition.  [L.  1911,  c.  223.] 

Section  31.  Upon  the  hearing  of  such  special  proceedings, 
the  court  shall  find  and  determine  whether  the  notice  of  the 
filing  of  the  petition  has  been  duly  given  and  published  for 
the  time  and  in  the  manner  in  this  act  prescribed,  and  shall 
have  power  and  jurisdiction  to  examine  and  determine  the 
legality  and  validity  of,  and  approve  and  confirm,  each  and 
all  of  the  proceedings  for  the  organization  of  said  district 
under  the  provisions  of  said  act,  from  and  including  the  peti- 
tion for  the  organization  of  the  district  unless  theretofore 
determined  as  in  this  Act  provided,  and  all  other  proceedings 
which  may  affect  the  legality  or  validity  of  said  bonds,  and 
the  order  of  the  sale  and  the  sale  thereof.  The  court,  in 
inquiring  into  the  regularity,  legality  or  correctness  of  said 
proceedings,  must  disregard  any  error,  irregularity  or 
omission  which  does  not  affect  the  substantial  rights  of  the 
parties  to  said  special  proceedings  in  part,  and  disapprove  and 
declare  illegal  or  invalid  other  or  subsequent  parts  of  the  pro- 
ceedings. The  cost  of  the  special  proceedings  may  be  allowed 
and  apportioned  between  the  parties,  in  the  discretion  of  the 
court.  [L.  1911,  c.  223.] 

Section  32.  The  board  of  directors  of  an  irrigation  district 
heretofore,  or  that  may  hereafter  be  organized,  may  commence 
special  proceedings  in  the  circuit  court  of  the  county  in  which 
the  office  of  such  district  is  located  for  the  purpose  of  having 
a  judicial  examination  and  judgment  of  the  court  as  to  the 
regularity  and  legality  of  the  organization  of  said  district, 
which  proceeding  shall  be  conducted  in  the  same  manner  as 
is  in  this  Act  provided  for  a  hearing  as  to  the  regularity  and 
legality  of  the  proceedings  of  the  said  district,  providing  for 
the  authorizing  the  issue  and  sale  of  the  bonds  of  the  district. 
[L.  1911,  c.  223.] 

Section  33.  'The  board  of  directors  may,  within  the  time 
hereinafter  limited,  after  the  order  of  the  county  court  declar- 
ing the  organization  of  any  irrigation  district  hereunder,  or 
declaring  the  result  of  any  election  hereunder,  or  after  the 
order  of  the  board  of  directors  of  such  irrigation  district 
including  or  excluding  any  lands  in  or  from  said  district  or 


120  WATER  LAWS  OF  THE  STATE  OF  OREGON 

declaring  the  result  of  any  election,  general  or  special,  herein 
provided  for  or  after  any  order  of  such  board  of  directors 
levying  any  assessment,  general  or  special,  or  ordering  the 
issue  of  any  bond  for  any  purpose  hereunder,  or  after  the  order 
determining  any  bond  issued  or  providing  for  the  same,  or 
after  such  bond  issue,  bring  a  proceeding  in  the  circuit  court 
of  the  county  in  which  the  district,  or  the  larger  portion 
thereof,  is  situated  for  the  purpose  of  determining  the  validity 
of  any  of  the  acts  or  things  in  this  section  above  enumerated. 
Said  proceeding  shall  be  a  proceeding  in  the  nature  of  a  pro- 
ceeding in  rem,  and  the  practice  and  procedure  therein  shall 
follow  the  practice  and  procedure  of  suits  in  equity  so  far  as 
the  same  shall  be  consistent  with  the  determination  sought 
to  be  obtained  except  as  herein  provided. 

Jurisdiction  of  the  said  irrigation  district,  of  each  and  all 
of  the  freeholders,  assessment  payers  and  legal  voters  therein 
shall  be  obtained  by  the  publication  of  summons  directed  to 
said  district  and  to  "all  freeholders,  legal  voters  and  assess- 
ment payers  within  said  district"  without  naming  such  free- 
holders, legal  voters  and  assessment  payers  individually. 
Such  summons  shall  be  served  on  all  parties  in  interest  by 
publication  thereof  for  at  least  once  a  week  for  three  successive 
weeks  in  some  newspaper  of  general  circulation  published  in 
the  county  where  said  proceeding  is  pending,  and  jurisdiction 
shall  be  complete  within  ten  days  after  the  full  publication 
of  said  summons  as  herein  provided. 

Any  person  interested  may,  at  any  time  before  the  expira- 
tion of  said  ten  days,  appear  and  contest  the  validity  of  such 
proceeding,  or  of  any  of  the  acts  or  things  therein  enumerated. 
Such  proceeding  shall  be  speedily  tried  and  judgment  rendered 
declaring  the  matter  so  contested  to  be  either  valid  or  invalid, 
and  any  order  or  judgment  in  the  course  of  such  proceeding, 
or  any  final  decree  therein,  may  be  made  and  rendered  by  the 
judge  of  such  court  in  vacation,  and  for  the  purpose  of  any 
-such  order,  judgment  or  decree  the  said  court  shall  be  deemed 
at  all  times  to  be  in  session  and  the  act  of  the  judge  in  making 
such  order,  judgment,  or  decree  shall  be  the  act  of  the  court. 

Either  party  may  have  the  right  to  appeal  to  the  Supreme 
Court  at  any  time  within  thirty  days  after  the  rendition  of  the 
final  judgment  or  decree,  which  appeal  must  be  heard  and 
determined  within  three  months  from  the  time  of  taking  such 
appeal.  [L.  1911,  c.  223.] 

Section  34.  If  any  such  proceedings,  as  enumerated  in 
Section  33  of  this  Act,  shall  not  have  been  brought  by  the  board 
of  directors  within  thirty  days  after  the  entry  of  the  order  or 
performance  of  any  acts  in  said  Section  33  enumerated,  and 
for  which  a  contest  is  by  said  section  provided,  then  any  dis- 


WATER  LAWS  OF  THE   STATE  OF  OREGON  121 


trict  assessment  payer  or  other  interested  person  may  bring 
a  like  proceeding  in  the  circuit  court  of  the  county  where  the 
lands  embraced  within  such  district,  or  the  majority  thereof, 
are  situated,  to  determine  the  validity  of  any  of  the  acts,  orders 
or  things  enumerated  in  said  Section  33,  and  concerning  which 
the  right  of  contest  is  by  said  section  given. 

In  such  proceeding  the  board  of  directors  shall  be  made 
parties  defendant  and  service  of  summons  shall  be  made  on. 
the  members  of  the  board  personally  if  within  the  county  where 
said  district,  or  any  part  thereof,  is  situated,  but  as  to  any 
director  not  within  such  county  service  may  be  had  by  publica- 
tion of  summons  for  a  like  time  and  in  like  manner  as  is  pro- 
vided by  Section  33,  and  service  shall  be  deemed  complete 
within  ten  days  from  the  date  of  personal  service  thereof 
within  such  county,  or  within  ten  days  from  the  date  of  the 
completion  of  the  publication  thereof,  as  the  case  may  be. 
Such  proceeding  shall  be  speedily  tried  in  the  same  manner  as 
provided  by  Section  33  of  this  Act  with  the  right  of  appeal 
to  either  party  and  said  appeal  shall  be  determined  within  the 
time  and  manner  provided  by  said  Section  33.  [L.  1911, 
c.  223.] 

Section  35.  The  court  hearing  any  of  the  contests  pro- 
vided for  by  this  Act,  or  any  inquiry  into  the  legality  or  cor- 
rectness of  any  of  the  proceedings  herein  provided  for,  must 
disregard  any  error,  irregularity,  informality  or  omission 
which  does  not  injuriously  affect  the  substantial  rights  of  the 
parties  to  said  proceeding,  and  no  contest  of  any  proceeding, 
matter  or  thing  by  this  Act  provided  to  be  had  or  done  by  the 
board  of  directors  of  said  district,  or  by  said  district,  or  by 
the  county  court,  shall  be  had  or  maintained  at  any  time  or  in 
any  manner,  except  as  herein  provided.  [L.  1911,  c.  223.] 

Section  36.  That  Section  6215  of  Lord's  Oregon  Laws,  the 
same  being  Section  4745  of  Bellinger  and  Cotton's  Annotated 
Codes  and  Statutes  of  Oregon,  be  and  the  same  is  hereby 
repealed.  [L.  1911,  c.  223.] 

Section  37.  That  Section  6216  of  Lord's  Oregon  Laws,  the 
same  being  Section  4746  of  Bellinger  and  Cotton's  Annotated 
Codes  and  Statutes  of  Oregon,  be  and  the  same  is  hereby 
repealed.  [L.  1911,  c.  223.] 

Section  38.  Nothing  in  this  Act  shall  be  so  construed  as  to 
affect  the  validity  of  any  district  heretofore  organized  under 
the  laws  of  this  State,  or  its  rights  in  or  to  property,  or  any 
of  its  rights  or  priviliges  of  whatsoever  kind  or  nature;  but 
said  districts  are  hereby  made  subject  to  the  provisions  of  this 
Act  so  far  as  applicable;  nor  shall  it  affect,  impair,  or  dis- 
charge any  contract,  obligation,  lien,  or  charge  for,  or  upon 
which  it  was  or  might  become  liable  or  chargeable  had  not  this 


122  WATER  LAWS  OF  THE  STATE  OF  OREGON 

Act  been  passed ;  nor  shall  it  affect  the  validity  of  any  bonds 
which  have  been  issued  but  not  sold ;  nor  shall  it  affect  any 
action  which  may  now  be  pending.  [L.  1911,  c.  223.] 

Section  39.  WHEREAS,  an  urgent  necessity  exists  for  a 
more  complete  system  governing  the  organization  and  manage- 
ment of  the  affairs  of  irrigation  districts  within  the  State  of 
Oregon,  and  that  by  reason  of  the  insufficiency  of  the  present 
laws,  numerous  irrigation  projects,  are  being  held  in  abeyance, 
and  the  provisions  of  this  Act  are  necessary  to  the  public  peace, 
health  and  safety,  and  an  emergency  is  hereby  declared  to 
exist  and  this  Act  shall  be  in  full  force  and  effect  from  and 
after  its  approval  by  the  Governor,  and  is  hereby  exempted 
from  the  operation  of  the  referendum  provisions  of  the  State 
Constitution.  [L.  1911,  c.  223,  p.  378.] 

§  6214.  Apportionment  of  Water  Among  Localities. 

In  case  the  volume  of  water  in  any  stream  or  river  shall 
not  be  sufficient  to  supply  the  continual  wants  of  the  entire 
country  through  which  it  passes  and  susceptible  of  irrigation 
therefrom,  then  it  shall  be  the  duty  of  the  water  commission- 
ers, constituted  as  hereinafter  provided,  to  apportion  in  a 
just  and  equitable  proportion,  a  certain  amount  of  said  water 
upon  certain  or  alternate  weekly  days  to  different  localities, 
as  they  may,  in  their  judgment,  think  best  for  the  interest  of 
all  parties  concerned,  and  with  due  regard  to  the  legal  and 
equitable  rights  of  all.  Said  water  commissioners  shall  con- 
sist of  the  chairman  of  the  board  of  directors  of  each  of  the 
districts  affected.  [L.  1895,  p.  32  §  45 ;  B.  &  C.  §  4744.] 

§  6217.  Act  Does  Not  Modify  Other  Laws  or  Authorize  Diversion  of 
Water. 

None  of  the  provisions  of  this  Act  shall  be  construed  as 
repealing  or  in  anywise  modifying  the  provisions  of  any  other 
act  relating  to  the  subject  oi;  irrigation  or  water  commission- 
ers. Nothing  herein  contained  shall  be  deemed  to  authorize 
any  person  or  persons  to  divert  the  waters  of  any  river,  creek, 
stream,  canal,  or  ditch  from  its  channel,  to  the  detriment  of 
any  person  or  persons  having  any  interest  in  such  river,  creek, 
stream,  canal,  or  ditch,  or  the  waters  therein,  unless  previous 
compensation  be  ascertained  and  paid  therefor,  under  the 
laws  of  this  State,  authorizing  the  taking  of  private  property 
for  public  uses.  [L.  1895,  p.  33,  §  48 ;  B.  &  C.  §  4747.] 

(&)     DRAINAGE  DISTRICTS. 
§  6126.  Petition  to  Establish  Drainage  Districts. 

Whenever  twenty-five  per  cent  of  the  owners  of  any  body 
of  land  susceptible  of  one  system  of  drainage  desires  to 


WATER  LAWS  OF  THE  STATE  OF  OREGON  123 

drain  the  same  for  the  public  benefit  for  sanitary  purposes, 
for  the  improvement  of  agriculture  or  to  prevent  overflow 
from  flood  waters  or  any  possible  rise  of  the  level  of  the 
sub-surface  waters  thereof,  they  may  present  to  the  county 
court  of  the  county  in  which  the  lands  or  the  greater  portion 
thereof  are  situated  at  a  regular  term  of  court  a  petition  pray- 
ing for  the  organization  of  a  drainage  district.  Such  petition 
shall  contain  a  description  of  the  boundaries  thereof,  the 
approximate  number  of  acres  in  the  proposed  district,  the  name 
or  number  proposed  for  the  same,  the  names  of  the  owners  of 
each  tract  of  land  included  therein  separately  owned,  and  a 
description  of  such  separately  owned  tracts,  and  the  names  of 
three  persons  to  serve  as  trustees  for  the  first  year  and  until 
their  successors  are  chosen  and  qualified.  Such  petition  shall 
also  contain  a  general  description  of  the  route  and  character  of 
the  proposed  drainage  system,  and  the  necessity  for  such 
drainage.  It  must  be  verified  by  affidavit  of  one  of  the  peti- 
tioners, and  must  be  published  for  four  weeks  next  preceding 
the  date  designated  in  the  petition  for  the  hearing  thereof  in 
some  newspaper  published  in  each  county  in  which  the  lands 
included  in  said  district  are  situate,  and  must  be  posted  for  the 
same  length  of  time  on  bulletin  board  in  the  county  court  house 
of  each  such  county ;  and  a  copy  thereof  shall  be  served  on  each 
record  owner  and  person  in  possession  of  such  lands  if  to  be 
found  within  the  county  or  counties  in  which  such  proposed 
drainage  district  may  be  located.  [L.  1889,  p.  25,  §  1 ;  B  &  C. 
§  4665 ;  L.  1909,  c.  177,  p.  248,  §  1 ;  L.  1911,  c.  241,  p.  424.] 

§  6127.  District  Partly  in  Different  Counties,  Manner  of  Proceeding. 

When  a  district  is  situated  partly  in  different  counties,  the 
trustees  must,  after  the  petition  has  been  granted,  forward  a 
copy  thereof  to  the  county  clerk  of  any  county  in  which  any 
portion  of  the  district  may  lie,  and  the  court  to  which  the 
same  is  forwarded  must  not  allow  another  district  to  be 
formed  within  such  district  unless  with  the  consent  of  the 
trustees  thereof.  [L.  1889,  p.  26,  §  2 ;  B.  &  C.  §  4666.] 

§  6128.  Approval  of  Petition  by  County  Court. 

Any  person  owning  lands  within  the  district  or  whose 
lands  are  affected  by  the  drainage  thereof  may  appear  at 
the  hearing  to  support  or  oppose  the  petition.  If  a  remon- 
strance against  the  granting  of  the  petition  be  filed  at  the  hear- 
ing, or  at  such  further  time  as  may  be  granted  by  the  court, 
signed  by  two-thirds  of  the  owners  of  the  property  within  the 
district,  the  petition  shall  not  be  granted.  If  no  such  remon- 
stration  be  filed  and  the  court  find  that  the  district  is  of  public 
utility  and  importance,  and  that  the  benefits  to  be  derived 


124  WATER  LAWS  OF  THE  STATE  OF  OREGON 

from  the  proposed  drainage  will  exceed  the  cost  thereof,  that 
no  land  is  improperly  included  in  or  excluded  from  the  district, 
and  that  the  system  of  drainage  in  general  meets  with  their 
approval  they  shall  note  their  approval  upon  the  petition  and 
cause  an  order  to  be  entered  in  the  county  records  approving 
the  same.  The  court  may,  however,  by  order,  alter  the  boun- 
daries of  the  district  or  prescribe  in  general  terms  a  different 
system  of  drainage.  If  such  alteration  shall  affect  any  lands 
not  affected  by  the  first  petition,  notice  shall  be  given  in  like 
manner  to  the  owners  of  such  land  for  such  time  as  the  county 
court  may  prescribe,  not  less  than  two  weeks,  and  a  hearing 
shall  be  had  at  a  subsequent  term  to  be  fixed  by  the  court  by 
order.  From  and  after  the  entering  of  such  order  the  district 
is  duly  formed,  and  the  persons  named  in  the  petition  or  such 
other  persons  as  the  county  court  may  designate  in  such  order 
are  directors  for  the  first  year  and  until  their  successors  are 
elected  and  have  qualified.  [L.  1889,  p.  26,  §  3 ;  B.  &  C.  §  4667 ; 
L.  1911,  c.  241,  p.  424.] 

§  6129.  Petition  to  Be  Recorded. 

The  petition  shall  then  be  recorded  in  the  records  of  the 
county  commissioners'  court.  [L.  1889,  p.  26,  §  4 ;  B.  &  C. 
§  4668.] 

§  6130.  Petitioners  May  Make  By-Laws. 

After  the  approval  of  the  petition  by  the  county  court  the 
directors  shall  cause  a  meeting  of  the  residents  of  the  dis- 
trict to  be  held,  at  a  convenient  time  and  place,  and  uuon 
reasonable  notice  to  the  owners  of  lands  within  the  district,  for 
the  purpose  of  adopting  such  by-laws  as  they  may  deem  neces- 
sary for  carrying  out  the  purposes  for  which  the  district  was 
organized.  Such  by-laws  shall  prescribe  the  manner  of  elec- 
tion of  trustees,  of  the  acquirement  of  real  and  personal  prop- 
erty for  the  purposes  of  the  district,  and  for  the  construction, 
maintenance,  and  operation  of  the  drainage  system.  They 
may  also  make  provisions  supplemental  to  those  contained  in 
the  law  for  the  assessment  and  collection  of  liens  upon  the 
lands  embraced  in  the  district,  for  the  construction,  operation, 
and  maintenance  of  the  drainage  system,  and  for  the  issuance 
and  sale  of  bonds  secured  by  the  lands  within  the  district  to 
provide  money  for  the  purposes  thereof.  Such  by-laws  shall 
not  be  operative  until  they  are  approved  by  the  county  court, 
which  approval  shall  be  noted  upon  a  copy  thereof  to  be  kept 
on  the  files  by  the  county  clerk,  and  the  court  shall  have  power 
to  modify  or  amend  said  by-laws,  by  and  with  the  consent  of 
the  land  owners  of  the  district  at  a  meeting  called  upon  such 
reasonable  notice  as  may  be  prescribed  in  such  by-laws.  [L. 


WATER  LAWS  OP  THE  STATE  OF  OREGON  125 

1889,  p.  26,  §  5;  B.  &  C.  §  4669;  L.  1909,  c.  177,  p.  249,  §  2;  L. 
1911,  c.  241,  p.  424.] 

§  6132.  Power  and  Authority  of  Drainage  District  Board. 

The  board  thus  formed  shall  have  power  to  elect  one  of  its 
number  president  thereof  and  to  employ  engineers  to  survey, 
plan,  locate  and  estimate  the  cost  of  the  works  necessary  for 
the  drainage  of  the  lands  in  such  drainage  district,  and  such 
board  shall  have  power  to  estimate  and  determine  the  amount 
and  value  of  land  needed  for  the  right  of  way  for  such  drain- 
age system ;  and  all  lands  which  may  be  necessary  and  conve- 
nient as  an  outlet  for  such  drains  and  ditches,  although  no  part 
of  the  same  may  be  marshy  or  wet,  may  be  included  in  the 
drainage  district  provided  for  by  this  Act;  and  in  all  cases 
where  the  owner  of  any  lands  which  may  be  necessary  or  con- 
venient for  such  right  of  way  is  unwilling  to  convey  the  same 
to  the  trustees  of  such  drainage  district  for  the  sum  estimated 
by  them  to  be  its  fair  value,  the  owner  of  such  land  shall 
appoint  one  disinterested  householder,  and  the  trustees  of  such 
drainage  district  one  householder,  who  shall  appoint  the  third 
householder,  and  the  three  so  chosen  shall  arbitrate  the  amount 
to  be  paid  for  the  right  of  way,  and  the  award  of  such  arbitra- 
tors shall  be  final,  and  the  amount  of  such  award  shall  be  first 
paid  before  the  right  of  way  shall  be  appropriated,  and  if  they 
cannot  agree  on  a  reasonable  price  within  ten  days  from  the 
time  the  same  is  submitted  to  them,  then  such  trustees,  in  their 
name  and  for  the  use  of  such  drainage  district,  may  maintain 
an  action  at  law  for  the  appropriation  of  so  much  of  such  land 
as  they  may  deem  necessary  for  the  uses  aforesaid  before  the 
circuit  court  of  the  county  where  such  land  is  situated  in  the 
same  manner  and  with  like  effect  as  is  provided  in  Chapter  I 
of  Title  XLV.  [L.  1889,  p.  26,  §  7;  L.  1891,  p.  471,  §  1; 
B.  &  C.  §  4671.] 

§  6133.  Drainage  Districts  May  Bring  Action  to  Condemn  Lands. 

All  drainage  districts  organized  in  the  State  of  Oregon,  and 
those  that  may  be  hereafter  organized,  are  hereby  authorized 
in  case  they  cannot  agree  with  the  adjacent  owners  of  the  land, 
between  their  drainage  districts  and  some  suitable  outlet  to  a 
stream  or  place  where  the  district  may  be  properly  drained,  to 
bring  an  action  at  law  in  the  circuit  court  of  the  proper  county, 
for  the  purpose  of  determining  the  damage  of  the  person,  per- 
sons, corporation,  county,  or  whomsoever  may  be  the  owner  of 
the  land  sought  to  be  appropriated  for  the  purpose  of  securing 
a  suitable  outlet  in  order  that  the  district  may  be  properly 
drained.  [L.  1909,  c.  44,  p.  92,  §  1.] 


126  WATER  LAWS  OF  THE  STATE  OP  OREGON 


§  6134.  Actions  Tried  As  Other  Condemnation  Proceedings. 

All  such  actions  may  be  tried  in  the  same  manner  and  form 
as  like  actions  are  now  tried  by  other  corporations  authorized 
to  conduct  like  actions,  and  the  same  law  shall  apply  to  the 
practice  and  method  of  procedure  as  the  statutes  now  provide 
for  in  the  cases  last  mentioned.  [L.  1909,  c.  44,  p.  92,  §  2.] 

§  6135.  Board  Must  Report  to  County -Court. 

The  board  of  trustees  must  report  to  the  county  court  of  the 
county  or  if  the  district  is  situated  in  more  than  one  county, 
then  to  the  county  court  of  each  county  in  which  the  district  or 
any  portion  thereof  is  situated,  the  plan  of  the  work  and  the 
estimates  of  the  cost,  together  with  the  estimates  of  the  inci- 
dental expense  of  superintendence,  repairs,  etc.  [L.  1889, 
p.  26,  §8;  B.  &  C.  §4672.] 

§  6136.  Commissioners  to  Assess  Charges  and  Benefits. 

The  county  court  by  which  the  district  was  formed  shall 
aopoint  three  viewers,  disinterested  taxpayers  of  the  county 
in  which  the  district,  or  some  part  thereof,  is  situate 
and  such  viewers  must  view  the  lands  situate  in  the  district 
and  make  upon  such  lands  an  assessment  of  the  benefits  which 
they  may  derive  from  the  work.  Such  assessment  shall  be 
reported  to  the  county  court,  which  shall  review  and  consider 
the  objections  to  the  same  at  a  subsequent  term  to  be  fixed  by 
its  order,  and  of  which  notice  shall  be  given  by  posting  the 
same  on  the  bulletin  board  in  the  county  court  house  in  each 
county  embraced  in  the  district,  and  in  such  other  manner  as 
the  county  court  may  prescribe.  After  such  assessments  shall 
have  been  reviewed  and  equalized  by  the  county  court,  if  it 
shall  find  that  the  same  are  just  and  that  the  amount  produced 
by  the  same  will  be  sufficient  to  carry  out  the  proposed  system 
of  drainage,  it  shall  by  order  cause  the  sums  so  assessed  to  be 
entered  either  upon  the  general  assessment  roll  or  a  separate 
roll  to  be  provided  for  by  the  court,  and  thereupon  such  assess- 
ment shall  become  a  lien  upon  the  lands  therein  described,  and 
shall  be  collected  in  like  manner  as  general  taxes  are  collected, 
or  by  civil  suit  or  action,  as  the  county  court  may  direct.  The 
court  may  by  order  direct  that  such  assessment  may  be  paid  by 
installments,  and  bonds  issued  against  the  same,  in  the  manner 
provided  by  Chapter  5  of  Title  XXVI,  Lord's  Oregon  Laws, 
being  Sections  3245-3253  thereof.  The  county  clerk  shall  per- 
form the  duties  develoved  upon  the  auditor,  the  county  judge 
the  duties  devolved  upon  the  mayor,  and  the  county  treasurer 
the  duties  devolved  uron  the  city  treasurer  by  such  Act.  [L. 
1889,  p.  27,  §  9;  B.  &  C.  §  4673;  L.  1911,  c.  241,  p.  424.] 


WATER  LAWS  OP  THE  STATE  OF  OREGON  127 

§  6137.  Warrants  to  Be  Presented  to  County  Treasurer. 

The  warrants  drawn  by  the  trustees  must,  after  they  are 
approved  by  the  county  court,  be  presented  to  the  treasurer 
of  the  county,  and  if  not  paid  on  presentation,  indorsement 
must  be  made  thereon,  and  they  must  be  registered  in  like 
manner  as  county  warrants.  If  a  district  is  situated  partly 
in  different  counties,  the  charges  must  be  paid  into  the  treas- 
ury of  the  county  in  which  the  said  district  was  originally 
created.  [L.  1889,  p.  27,  §  10;  B.  &  C.  §  4674.] 

§  6138.  Original  Assessment  Insufficient,  Additional  Assessment. 

If  the  original  assessment  is  insufficient  to  provide  for  the 
complete  drainage  of  the  land  of  the  district,  or  if  further 
assessments  are  from  time  to  time  required  to  provide  for  the 
protection,  maintenance,  and  repairs  of  the  works,  then  the 
trustees  must  present  to  the  county  court  by  which  the  district 
was  formed  a  statement  of  the  work  to  be  done  and  its  esti- 
mate cost ;  and  the  court  must  make  an  order  directing  the 
commissioners  who  made  the  original  assessment,  or  other 
commissioners  to  be  named  in  such  order,  to  assess  the  amount 
of  such  estimated  cost  as  a  charge  upon  the  lands  in  the  dis- 
trict, which  assessment  must  be  made  and  collected  in  the  same 
manner  as  the  original  assessment.  [L.  1889,  p.  27,  §  12 ; 
B.  &  C.  §  4675.] 

§  6139.  List  of  Charges  Assessed  Against  Each  Tract  to  Be  Made. 

The  commissioners  appointed  by  the  county  court  must 
make  a  list  of  the  charges  assessed  against  the  lands  of  each 
district,  and  the  list  must  contain  a  description  of  each  tract 
assessed,  the  number  of  acres  in  each  tract,  and  the  names  of 
the  owners  of  the  lands  in  each  tract,  if  known,  and  if  unknown, 
the  amount  of  charges  assessed  against  each  tract.  [L.  1889, 
p.  27,  §13;B.  &C.  §4676.] 

§  6140.  Filing  List  of  Charges,  Lien  on  Land  Constituted. 

The  list  so  made  must  be  filed  with  the  county  treasurer 
of  the  county,  or  if  the  district  is  partly  situated  in  dif- 
ferent counties,  then  the  original  list  must  be  filed  in  the 
county  in  which  such  district  was  originally  created,  and 
copies  thereof,  certified  by  the  commissioners,  must  be  filed 
with  the  treasurer  of  each  of  the  other  counties.  From  and 
after  the  filing  of  the  list,  or  certified  copies  thereof,  the 
charges  assessed  upon  any  tract  of  land  in  said  drainage  dis- 
trict constitutes  a  lien  upon  said  tract  of  land  in  the  county  in 
which  said  drainage  district,  or  portion  thereof,  is  situated. 
The  list  thus  prepared  must  remain  in  the  office  of  the  county 
treasurer  thirty  days,  or  longer  if  ordered  by  the  board  of 


128  WATER  LAWS  OF  THE  STATE  OP  OREGON 

trustees,  and  the  board  of  trustees  may  extend  the  time  of  the 
payment  of  the  charges  assessed  against  the  tracts  of  land 
iru  said  drainage  district  from  time  to  time  to  conveniently 
meet  the  expenses  incurred  in  constructing  said  drainage 
system,  or  keeping  the  same  in  repair,  and  during  the  time  the 
list  so  remains,  any  person  may  pay  the  amount  of  the  charges 
against  any  tract  to  the  treasurer,  without  costs,  or  if  so 
ordered  by  the  trustees,  said  payments  may  be  made  by  install- 
ments, and  the  time  of  paying  said  installments  may  be 
extended  from  time  to  time  as  hereinbefore  provided;  and  if, 
at  the  end  of  thirty  days,  or  of  any  longer  period  fixed  by  the 
trustees,  all  of  the  charges,  or  all  of  any  of  the  installments 
ordered  by  them,  have  not  been  paid,  the  treasurer,  when 
ordered  by  the  board  of  trustees,  shall  return  the  list,  having 
designated  thereon  the  various  tracts,  against  which  there 
remains  unpaid  charges,  the  amount  of  charges  unpaid  and  the 
names  of  the  owners  thereof,  to  the  district  attorney  of  the 
county,  in  which  said  drainage  district  is  situated,  who  shall 
at  once  proceed  by  suits  in  equity  to  foreclose  the  liens  against 
the  various  tracts  of  land  on  which  there  are  unpaid  charges. 
The  suits  to  foreclose  said  liens  shall  be  commenced  in  the 
name  of  the  drainage  district,  the  complaints  shall  be  verified 
by  the  president,  or  in  his  absence  by  the  secretary  of  the 
board  of  trustees,  and  the  procedure  shall  be  the  same  as  in 
the  foreclosure  of  mortgage  liens  against  real  property.  At 
the  sale  of  said  tracts  the  drainage  district  shall  have  the  right 
to  bid  thereat  a  sum  or  sums  not  to  exceed  the  lien  charges 
and  costs  of  foreclosure  and  sale  against  any  particular  tract. 
The  tracts  thus  sold  shall  be  subject  to  redemption  within  the 
time,  manner  and  provisions  of  law  governing  the  redemption 
of  real  estate  sold  on  execution.  In  the  event  any  of  the  tracts 
sold  shall  be  purchased  by  the  drainage  district,  and  shall  not 
be  redeemed  as  herein  provided,  then  the  drainage  district 
may  sell  and  convey  said  unredeemed  tracts,  in  the  name  of 
the  drainage  district,  by  order  of  its  board  of  trustees  using 
the  ordinary  scroll  seal  for  its  signature.  Upon  the  sale  of 
any  tract,  or  tracts,  if  there  be  any  overplus,  after  paying 
all  assessments,  charges  and  costs  of  foreclosure  and  sale, 
the  overplus  shall  be  deposited  with  the  county  treasurer, 
to  be  paid  by  him  by  order  of  the  court,  to  the  party  or  parties 
entitled  to  the  same.  [L.  1889,  p.  27,  §  14 ;  B.  &  C.  §  4677 ; 
L.  1911,  c.  250,  p.  441.] 

§  6141.  Work  Done  Under  Direction  of  Board. 

The  work  must  be  executed  under  the  dirtction  and  in  the 
manner  prescribed  by  the  board  of  trustees.  [L.  1889,  p.  28, 
§15;B.  &C.  §4678.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  129 

§  6142.  Board  Must  Keep  Accounts. 

The  board  must  keep  accurate  accounts  of  all  expenditures, 
which  accounts  and  all  contracts  that  may  be  made  by  them 
are  open  to  the  inspection  of  the  county  court  and  every  person 
interested.  [L.  1889,  p.  28,  §  16 ;  B.  &  C.  §  4679.] 

§  6143.  Trustees  May  Acquire  Property. 

The  trustees  may  acquire  by  purchase,  all  property  neces- 
sary to  carry  out  and  maintain  the  system  of  drainage  pro- 
vided for.  [L.  1889,  p.  28,  §  17 ;  B.  &  C.  §  4680.] 

§  6144.  Owners  May  Drain  on  Their  Own  Responsibility,  When. 

Whenever  any  district  susceptible  of  one  mode  of  drainage, 
entirely  owned  by  parties  who  desire  to  drain  the  same,  and  to 
manage  such  drainage  without  the  intervention  of  trustees  or 
the  establishment  of  by-laws,  they  may  file  the  petition  pro- 
vided for  in  Sections  6126  and  6127,  and  must  state  therein 
that  they  intend  to  undertake  such  drainage  on  their  own 
responsibility.  If  the  petition  is  granted  the  owners  of  the 
land  have  all  the  rights,  immunities,  and  privileges  granted  to 
boards  of  trustees,  and  in  all  proceedings  the  names  of  the 
owners  may  be  used  instead  of  the  names  of  the  trustees. 
[L.  1889,  p.  28,  §  18 ;  B.  &  C.  §  4681.] 

§  6145.  Penalty  for  Injuring  or  Refusing  to  Keep  Drain  Open. 

If  any  person  or  persons  shall  willfully  fill  up,  injure,  or 
destroy  any  drain  constructed  as  herein  required,  or  willfully 
prevent  or  delay  the  construction  of  any  drain  in  the  manner 
provided  in  this  Act,  or  shall  neglect  or  refuse  to  keep  the  same 
open,  as  required  by  this  Act,  such  person  or  persons  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof, 
for  the  .first  offense  shall  be  fined,  in  a  sum  not  less  than  $25 
nor  more  than  $100 ;  and  for  the  second  offense  shall  be  fined  in 
a  sum  not  less  than  $50  nor  more  than  $200 ;  and  for  each  'sub- 
sequent offense  shall  be  confined  in  the  county  jail  for  not  less 
than  thirty  days  nor  more  than  one  year.  [L.  1889,  p.  28, 
§19;  B.  &  C.  §4682.] 

§  5800.  Establishing  Draining  Ditches  in  Washington  County. 

Whenever  the  owners  of  land  in  Washington  County,  adjoin- 
ing or  adjacent  to  any  stream  or  water  course  that  is  not  navi- 
gable, subject  to  overflow,  shall  desire  to  clear  said  stream  of 
driftwood  or  other  obstructions  to  the  free  flowage  of  water  in 
the  channel  thereof,  they  may  petition  to  the  county  court  for 
the  appointment  of  three  commissioners  to  examine  said 
stream  and  the  lands  adjoining  or  adjacent  thereto  subject  to 
overflow,  and  ascertain  the  amount  and  character  of  such 


130  WATER  LAWS  OF  THE  STATE  OP  OREGON 

lands,  with  their  value.  The  commissioners  thus  appointed 
shall  establish  a  drainage,  district  or  districts  on  such  stream 
and  the  boundaries  thereof.  They  shall  then  assess  and  deter- 
mine the  value  of  all  lands  subject  to  such  overflow,  with  the 
names  of  the  owners  thereof,  and  report  their  doings  to  the 
county  court  at  the  next  term  after  their  appointment.  [L. 
1880,  p.  53,  §  1 ;  H.  §  3432 ;  B.  &  C.  §  4369.] 

§  5801.  When  Draining  District  May  Be  Established. 

If  no  remonstrance,  signed  by  a  majority  of  the  owners  rep- 
resenting a  majority  value  of  such  lands  subject  to  overflow 
within  the  district  or  districts  as  established,  shall  be  filed  with 
the  clerk  of  the  county  court  ten  days'  before  the  next  session 
of  said  court,  the  court  shall  establish  said  district  as  a  drain- 
age district  or  districts,  designating  fully  the  boundaries 
thereof,  and  describing  the  same  by  number  or  name.  [L. 
1880,  p.  53,  §2;  H.  §3433;  B.  &  C.  §4370.] 

§  5802.  Notice  for  Election  of  Supervisor. 

Whenever  a  drainage  district  is  so  formed  and  established, 
notice  shall  be  given,  by  posting  notices  in  three  of  the  most 
public  places  in  said  district,  that  a  meeting  of  the  owners  of 
land  in  said  district  subject  to  overflow  will  be  held  for  the 
purpose  of  electing  a  supervisor  of  drainage.  The  notice  shall 
be  posted  at  least  ten  days  before  the  call  for  the  meeting,  and 
shall  state  the  time  and  place  of  such  meeting.  [L.  1880,  p.  53, 
§3;H.  §3434;B.  &  C.  §4371.] 

§  5803.  Votes  Allowed  to  Land  Owners. 

In  voting,  each  land  owner  shall  be  allowed  one  vote  for 
every  $10,  or  fraction  under  $10  and  over  $5,  of  such  assessed 
value  of  land  owned  by  him,  as  reported  by  the  commissioners 
of  drainage  as  provided  in  Section  5800.  All  votes  shall  be 
recorded,  and  may  be  made  either  in  person  or  by  written 
proxy.  [L.  1880,  p.  53,  §  4 ;  H.  §  3435 ;  B.  &  C.  §  4372.] 

§  5804.  Election  of  Supervisors — Special  Meetings  of  Voters. 

An  annual  election  shall  be  held  within  each  drainage  dis- 
trict on  the  first  Monday  in  March  of  each  year,  at  which  the 
supervisor  of  drainage  shall  report  all  his  acts  and  doings  as 
such  supervisor  of  drainage  during  his  term  of  office,  and  if 
found  correct  by  the  land  owners,  it  shall  be  entered  on  the 
minutes  of  said  meeting.  Special  meetings  may  be  called  by 
said  supervisor,  or  by  a  majority  of  the  voters  in  said  district, 
as  allowed  by  Section  5803,  to  which  this  is  an  amendment,  at 
any  time,  by  giving  ten  days'  notice  of  the  time  and  place  and 
object  of  such  special  meeting,  by  posting  three  notices  of  the 


WATER  LAWS  OF  THE  STATE  OF  OREGON  131 


same  in  three  public  places  in  said  drainage  district.     [L.  1880, 
p.  53,  §  5 ;  L.  1882,  p.  56,  §  1 ;  H.  §  3436 ;  B.  &  C.  §  4373.] 

§  5805.  Supervisors  and  Secretary,  When  Elected,  Their  Duties. 

The  first  and  each  subsequent  annual  meeting  shall  elect  a 
secretary  and  supervisor  of  drainage,  who  shall  hold  their 
several  offices  for  one  year,  and  until  their  successors  are 
elected  and  qualified.  Sa;d  officers  shall  qualify  by  taking  an 
oath  to  faithfully  discharge  the  duties  of  their  several  offices 
to  the  best  of  their  knowledge  and  ability.  The  supervisor  of 
drainage  shall  preside  at  all  meetings  of  said  district,  and  per- 
form such  other  duties  as  shall  be  required  of  him  by  law.  The 
secretary  shall  keep  a  record  of  the  proceedings  of  all  general 
and  special  meetings,  shall  file  and  keep  the  reports  made  by 
the  supervisor  of  drainage,  and  perform  all  other  duties  re- 
quired of  him  by  law.  [L.  1880,  p.  53,  §  6;  L.  1882,  p.  56, 
§  2;  H.  §  3437;  B.  &  C.  §  4374.] 

§  5806.  Report  to  Be  Filed  With  Clerk  of  County  Court. 

The  secretary  shall  file  a  copy  of  the  report  of  the  super- 
visor of  drainage,  with  a  synopses  of  the  proceedings  of  each 
annual  meeting,  with  the  clerk  of  the  county  court.  PL.  1880, 
p.  54,  §  7;  L.  1882,  p.  57,  §  3;  H.  §3438;  B.  &  C.  §  4375.] 

§  5807.  Supervisor's  Power. 

The  supervisor  of  drainage  shall  have  power  and  it  is 
hereby  made  his  duty,  to  clear  the  streams  as  described  in  Sec- 
tion 5800,  of  all  drifts,  brush  and  other  obstructions  to  the  free 
flowage  of  water  therein,  to  construct  embankments  and  fill 
cuts  to  prevent  overflow,  and  whatever  in  his  opinion  is  neces- 
sary to  the  protection  of  the  lands  in  said  drainage  district  and 
aid  in  drainage  thereof.  He  shall  be  empowered  to  enter  on 
any  lands  and  use  any  timber,  rock,  earth,  or  gravel  necessary, 
and  shall  charge  up  the  cost  of  such  work  to  the  district  in 
proportion  to  the  assessed  value  thereof,  as  provided  in  Sec- 
tion 5800.  [L.  1880,  p.  54,  §  8;  L.  1882,  p.  57,  §  4;  H.  §  3439; 
B.  &  C.  §  4376.] 

§  5808.  Charges,  How  Enforced. 

The  charge  made  by  the  supervisor  of  drainage,  when  found 
to  be  correct  by  a  meeting  of  the  land  owners,  as  provided  in 
Section  5804,  shall  be  a  charge  upon  said  lands  and  the  owners 
thereof,  and  may  be  collected  at  civil  suit  from  the  personal 
property  of  the  person  in  default,  if  any  such  is  fonud  in  the 
county ;  if  not,  a  filing  of  the  charge  with  the  county  clerk  shall 
constitute  a  lien  on  the  lands  of  such  person  in  such  district, 
and  shall  be  collected  by  the  sheriff  in  the  same  manner  as 


132  WATER  LAWS  OF  THE  STATE  OF  OREGON 

delinquent  school  taxes  are  collected,  and  when  so  collected, 
shall  be  paid  over  by  the  sheriff,  after  deducting  the  expenses 
of  collection,  to  the  supervisor  of  drainage  of  the  proper  dis- 
trict, to  be  expended  in  the  payment  of  cost  of  drainage.  [L. 
1880,  p.  54,  §  9;  L.  1882,  p.  57,  §  5;  H.  §  3440;  B.  &  C.  §  4377.] 

§  5809.  Supervisor  to  Determine  As  to  Expenditure  of  Money. 

The  supervisor  of  drainage  shall  determine  the  time, 
amount,  manner  and  place  of  expending  labor  or  money  in 
clearing  the  streams  of  driftwood  and  obstruction  in  his  dis- 
trict, but  such  expenditures  shall  in  no  year  exceed  the  amount 
of  five  per  cent  of  the  assessed  value  thereof,  as  provided  in 
Section  5800.  [L.  1880,  p.  54,  §10;  L.  1882,  p.  57,  §6;  H. 
§  3441 ;  B.  &  C.  §  4378.] 

§  5810.  Notice  of  Employment  of  Labor. 

In  the  employment  of  labor  by  the  supervisor  of  drainage, 
notice  of  the  time  and  place  of  doing  the  work  shall  be  given, 
either  by  personal  notice  to  the  parties  interested,  or  by  posting 
notices  in  three  of  the  most  public  places  of  the  district,  at 
least  five  days  before  the  work  is  commenced.  [L.  1880,  p.  54, 
§  11 ;  H.  §  3442 ;  B.  &  C.  §  4379.] 

$  5811.  Bond  Required  Before  Commissioners  Appointed. 

Upon  application  being  made  for  the  establishment  of  a 
drainage  district  as  provided  in  this  Act,  the  county  court  shall, 
before  issuing  an  order  to  the  commissioners,  require  a  bond 
to  be  executed  with  sufficient  surety,  to  be  approved  by  the 
court,  and  made  payable  to  the  county,  in  such  sums  as  the 
court  shall  direct,  and  not  exceeding  $200,  conditioned  that  if 
the  prayer  of  the  petitioners  shall  be  not  granted  and  allowed 
the  person  executing  such  bonds  will  pay  all  costs  and  expenses 
that  may  be  incurred  by  reason  of  such  view  or  review  by  said 
commissioners;  but  when  a  drainage  district  is  established  by 
the  county  court,  all  necessary  expenses  incurred  by  the  county 
in  establishing  said  drainage  district  shall  be  paid  by  the  land 
owners  of  the  district  so  established.  [L.  1880,  p.  54,  §  12; 
H.  §3443;  B.  &  C.  §4380.] 

§  5812.  Notice  of  Application  to  Establish  Drainage  District. 

At  least  ten  days  before  the  presenting  of  the  petition  for 
the  establishment  of  a  drainage  district  as  provided  for  in  Sec- 
tion 5800,  written  or  printed  notices  of  such  petition  shall  be 
posted  in  at  least  three  public  places  within  such  contemplated 
district,  and  such  notices  shall  contain  a  true  copy  of  such  peti- 
tion or  petitions,  and  shall  state  the  time  it  is  to  be  presented  to 
the  county  court  of  the  county.  [L.  1880,  p.  55,  §  13 ;  H. 
§3444;  B.  &  C.  §4381.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  133 


(c)     DIKING  DISTRICTS. 

§  6147,  County  Court  Authorized  to  Maintain  Dikes. 

The  county  court  of  any  county  in  this  State  shall  have 
power,  hereinbefore  provided,  to  regulate  the  building  and 
maintenance  of  dikes  and  dams  for  the  purpose  of  reclaiming 
and  improving  lands  subject  to  tide  overflow,  or  overflow  by 
freshets,  and  for  the  purpose  of  protecting  lands  from  overflow 
where  great  damage  is  liable  to  be  caused  thereby.  [L.  1895, 
p.  117,  §  1 ;  B.  &  C.  §  4684;  L.  1909,  c.  146,  p.  214,  §  1.] 

§  6148.  Petition   for   Diking   District,   What   to   Contain,   Bond   for 
Expenses. 

When  one-half  or  more  of  the  owners  of  lands  which  may  be 
conveniently  embraced  in  one  diking  district  subject  to  over- 
flow by  tidewaters  or  freshets,  and  who  shall  represent  one- 
half  or  more  of  the  area  of  the  lands  embraced  within  the  pro- 
posed diking  district,  shall  present  a  petition  to  the  county 
court  of  the  county  in  which  said  lands  are  situated,  reciting 
therein  that  't  is  desired  to  form  a  diking  district  for  the  pur- 
pose of  improving  by  diking  or  damming  the  lands  contained 
therein,  which  are  subject  to  overflow  by  tidewater,  or  by 
freshets,  as  the  case  may  be,  and  further  giving  by  legal  sub- 
divisions, or  by  metes  and  bounds,  the  description  of  such 
lands  as  are  desired  to  be  included  in  such  district,  and  stating 
that  the  petitioners  are  the  owners  of  one-half  or  more  of  the 
acreage  to  be  embraced  in  such  district,  the  county  court  of  said 
county  shall  consider  the  petition,  and  if  said  court  shall  find 
the  statements  therein  are  substantially  correct,  the  court  shall 
require  the  petitioners  to  give  a  bond  sufficiently  to  cover  the 
preliminary  expenses  hereinafter  specified.  [L.  1895,  p.  117, 
§  2 ;  B.  &  C.  §  4685 ;  L.  1905,  c.  199,  p.  328,  §  1.] 

§  6149.  Publication  of  Petition — Appointment  of  Viewers. 

The  county  court  shall  then  have  the  petition  published  in 
the  official  county  paper  once  each  week  for  four  consecutive 
weeks,  together  with  an  order,  citing  all  interested  parties  to 
appear  before  the  court  on  a  given  date,  after  time  of  the  pub- 
lication of  the  notice  has  expired,  and  show  cause  why  the 
petition  should  not  be  granted.  The  court  shall  appoint  three 
disinterested  viewers,  non-residents  of  the  proposed  district, 
together  with  the  county  surveyor,  to  view  out  the  proposed 
dikes  and  dams,  along  the  most  practical  route  to  accomplish 
the  object  desired,  at  the  least  possible  cost  and  expense;  pro- 
vided, that  the  State  Engineer,  or  a  competent  representative 
of  his  office  shall,  upon  order  of  the  county  court,  assist  the 
county  surveyor  in  making  such  survey  and  plans  for  the  pro- 


Sig.  10 


134  WATER  LAWS  OF  THE  STATE  OF  OREGON 

posed  improvement,  which  order  shall  be  made  by  the  county 
court,  if  requested  so  to  do  in  the  petition,  and  the  fees  of  said 
State  Engineer  shall  be  inculded  as  a  part  of  the  costs  of  said 
improvement.  [L.  1895,  p.  117,  §  3;  B.  &  C.  §  4686;  L.  1909, 
c.  146,  p.  214,  §  2.] 

§  6150.  Routine  of  Procedure  Similar  to  That  in  Establishing  Road. 
The  routine  of  procedure  under  this  Act  shall  be  as  far  as 
practicable  the  same  as  prescribed  by  the  road  law  of  the  State 
for  survey,  location,  and  establishment  of  county  roads.  The 
surveyors  and  viewers  appointed  shall  meet,  as  prescribed  by 
the  county  .court.  They  shall  trace  upon  the  ground  the  line  of 
the  dikes  and  dams  necessary,  and  shall  keep  an  accurate 
record  of  the  magnetic  bearings  and  the  distances  upon  the 
same.  They  shall  designate  the  width  of  the  right  of  way 
through  which  the  dikes  and  dams  shall  pass,  which  right  of 
way,  should  the  petition  be  granted,  shall  be  the  prouerty  of 
the  district  in  so  far  as  is  necessary  for  the  purpose  of  building 
and  maintaining  the  works.  The  surveyors  and  viewers  shall 
also  define  the  boundaries  of  the  district,  and  make  an  accurate 
list  of  the  landowners  within  the  same,  and  their  lands  by  legal 
subdivision  embraced  therein.  They  shall  further  make  plans 
for,  and  estimate  the  cost  of  the  proposed  dikes  and  dams,  and 
shall  file  with  the  county  clerk  at  least  one  week  before  the  day 
set  for  a  hearing,  a  complete  report  of  their  works,  and  their 
report  shall  be  open  to  public  inspection.  [L.  1895,  p.  117,  §  4; 
B.  &  C.  §  4687.] 

§  6151.  Proceeding  Upcn  Hearing  on  Petition. 

At  the  time  advertised  for  a  hearing  of  interested  parties, 
the  court  may  postpone  such  hearing  as  may  be  necessary  in 
order  to  allow  the  viewers  more  time  in  which  to  report,  or  for 
other  good  causes.  Upon  the  day  of  final  hearing,  should  the 
county  court,  from  the  report  of  the  viewers  and  the  testimony 
of  interested  persons  believe  that  the  benefits  to  be  derived 
from  forming  a  diking  district  are  not  sufficiently  great  to 
justify  the  expenditure  which  will  be  incurred,  then  the  peti- 
tion and  report  shall  be  dismissed  at  the  cost  of  the  petitioners. 
Should  the  court  believe  that  the  proposed  improvement  will 
be  for  the  general  public  good,  and  that  the  increase  in  the 
taxable  value  of  the  land  will  be  greater  than  the  cost,  or  that 
destruction  of  or  damage  to  property  equal  to  the  cost  will  be 
prevented,  the  petition  shall  be  granted  and  the  district  formed, 
a  number  given  by  which  it  shall  be  designated  in  future  pro- 
ceedings, the  report  of  the  viewers  adopted  and  incorporated 
in  the  court  records,  and  the  cost  of  the  preliminary  work 
assessed  upon  the  district.  [L.  1895,  p.  118,  §5;  B.  &  C. 
§  4688;  L.  1909,  c.  146,  p.  214,  §  3.] 


WATER  LAWS  OF  THE  STATE  OP  OREGON  135 


§  6152.  Laws  Applicable. 

That  Sections  6148,  6150,  6153,  6154,  6155,  6156,  6157, 
6158,  6159,  6160,  6161,  and  6162  be  and  the  same  are  hereby 
made  applicable  to  all  proceedings  commenced  under  this  act, 
and  all  such  proceedings  shall  be  commenced  and  prosecuted  in 
accordance  therewith,  except  as  particularly  otherwise  pro- 
vided in  this  Act.  [L.  1907,  c.  146,  p.  215,  §  4.] 

§  6153.  Apportioning  Estimated  Cost — Money  Collected  Special  Fund. 

After  the  petition  has  been  granted  and  the  proceedings  had 
as  in  this  Act  specified,  the  court  shall  apportion  the  estimated 
cost  of  the  dikes  and  dams  among  the  landowners  of  the  pro- 
posed district,  in  proportion  to  the  valuation  of  the  lands 
therein,  according  to  the  estimated  value  which  shall  be  placed 
upon  the  respective  tracts  by  the  viewers  mentioned  in  this  act. 
The  cost  thus  apportioned  shall  be  a  tax  upon  the  land  and 
shall  be  placed  upon  the  assessment  roll  of  said  county  for  the 
current  year;  and  such  taxes  for  said  diking  purposes  shall 
have  the  same  legal  effect  and  be  collected  in  a  like  manner  as 
other  State  and  county  taxes  upon  the  assessment  roll,  and  the 
moneys  collected  on  the  assessment  for  said  diking  purposes 
shall  be  paid  to  the  county  treasurer  and  by  him  held  as  a  spe- 
cial fund  for  the  credit  of  saM  diking  district,  to  be  paid  out  in 
accordance  with  the  provisions  hereinafter  specified.  [L.  1895, 
p.  118,  §  6;  B.  &  C.  §  4689;  L.  1905,  c.  199,  p.  329,  §  2.] 

§  6154.  Advertisement  for  Bids  for  Work;  Contracts  Therefor. 

When  the  tax  has  been  collected  or  the  application  filed  as 
in  this  section  provided,  the  county  court  shall  advertise  for 
bids  on  the  proposed  work,  either  as  a  whole  or  in  parts,  as  may 
be  deemed  most  economical.  The  advertisement  for  bids  shall 
be  published  in  the  official  county  paper  once  each  week  for 
two  successive  weeks  previous  to  letting  the  contracts.  The  con- 
tracts shall  be  drawn  in  such  terms  as  will  insure  the  district 
against  loss,  and  a  bond  required  of  the  contractor  such  as  will 
insure  the  completion  of  the  work  in  case  of  the  contractor's 
failure  to  comply  with  his  agreement.  No  contract  shall  be 
awarded  which  calls  for  an  expenditure  of  a  sum  of  money 
greater  than  the  tax  levied  for  the  purpose ;  provided,  that  the 
difference  may  be  made  up  by  personal  subscriptions ;  and  pro- 
vided also,  the  court  may  modify  the  plan  so  as  to  bring  the 
cost  of  work  within  the  tax  levy,  if  such  modification  can  be 
made  without  material  detriment  to  the  improvements;  pro- 
vided, however,  that  after  said  assessments  have  been  made, 
it  shall  be  lawful  for  the  owner  of  any  property  so  assessed  for 
such  improvement  in  a  sum  not  less  than  $50  at  any  time  with- 
in ten  days,  after  the  cost  of  such  diking  district  shall  have 


136  WATER  LAWS  OF  THE  STATE  OP  OREGON 

been  apportioned,  to  file  with  the  clerk  of  the  court  of  said 
county  a  written  application  to  pay  said  assessments  in  install- 
ments, and  such  written  application  shall  state  that  the  appli- 
cant and  property  waives  all  irregularities  or  defects,  jurisdic- 
tional  or  otherwise,  in  the  proceedings  to  create  said  diking 
district,  and  in  the  assessments  therefor  and  apportionment  of 
such  costs.  Said  application  shall  contain  a  provision  that  the 
applicant  and  property  owner  agrees  to  pay  said  assessment  in 
five  annual  installments  with  interest  at  the  rate  of  six  per 
cent  per  annum,  but  no  such  application  shall  be  received  and 
accepted  where  the  assessment  exceeds  the  assessed  valuation 
of  said  property  on  the  tax  roll  of  said  county.  Such  install- 
ments shall  be  paid  annually  from  the  time  of  the  apportion- 
ment of  said  costs,  and  in  case  of  default  in  the  payment  of  any 
installment  for  a  period  of  twenty  days  after  the  same  becomes 
payable,  the  whole  of  the  remaining  unpaid  sum  shall  be  col- 
lected as  a  tax  against  the  property  assessed  for  the  same. 
[L.  1895,  p.  118,  §  7;  B.  &  C.  §  4690;  L.  1905,  c.  199,  p.  329, 
§3.] 

§  6155.  Advisory  Board  and  Superintendent. 

Within  ten  days  after  the  petition  has  been  granted,  peti- 
tioners shall  call  a  meeting  of  the  land  owners  of  the  district, 
to  be  held  in  said  district  at  a  time  and  place  by  them  desig- 
nated, for  the  purpose  of  choosing  three  of  said  land  owners  as 
an  advisory  board  and  nominate  one  of  the  land  owners  of  said 
district  for  superintendent  of  said  district.  Notice  of  said 
meeting  to  be  signed  by  at  least  three  of  said  petitioners' 
and  posted  in  three  public  places  in  said  district  five  days 
before  the  date  of  said  meeting.  One-half  of  the  land  owners 
in  said  district  being  the  record  owners  of  at  least  two-thirds 
of  the  number  of  acres  of  land  therein  shall  constitute  a 
quorum  competent  to  transact  business.  At  said  meeting,  and 
at  subsequent  district  meetings,  each  of  said  land  owners  pres- 
ent shall  be  entitled  to  one  vote  for  each  acre  of  land  in  said 
district  of  which  he  shall  at  the  time  be  the  record  owner. 

The  first,  and  all  subsequent  meetings,  shall  be  organized 
by  selecting  a  chairman  and  secretary.  The  secretary  shall  cer- 
tify all  proceedings  taken  and  file  the  same  with  the  county 
court  of  said  county  within  five  days  after  any  meeting. 

It  shall  be  the  duty  of  the  advisory  board  to  assist  the  super- 
intendent with  its  advice  and  counsel  concerning  the  necessity 
of  work  and  the  manner  thereof  and  in  the  repair  and  mainte- 
nance of  the  dikes  and  dams  in  the  district. 

The  members  of  the  advisory  board  shall  hold  office  until 
the  next  annual  meeting  and  until  their  successors  shall  have 
been  elected  and  qualified. 


WATER  LAWS  OF  THE  STATE  OF  OREGON  137 

There  shall  be  an  annual  meeting  of  the  land  owners  of  the 
district  held  on  the  first  Monday  in  November  of  each  year, 
at  the  hour  of  11  o'clock  in  the  forenoon,  at  which  time,  or  at 
an  adjourned  meeting  thereof,  three  land  owners  of  the  dis- 
trict shall  be  chosen  for  the  advisory  board;  and  a  superin- 
tendent shall  be  nominated  for  the  next  calendar  year,  and  his 
selection  certified  to  the  county  court  on  or  before  the  1st  day 
of  January  each  year. 

The  county  court  shall  appoint  for  superintendent  of  dikes 
in  each  district  the  person  so  nominated  by  the  land  owners  of 
the  district. 

Should  the  district  fail  to  file  with  the  county  court,  as 
heretofore  specified,  a  certificate  of  the  nomination  of  a  super- 
intendent, then  the  county  court  shall  make  its  own  selection 
from  the  land  owners  in  said  district  and  appoint  him  superin- 
tendent. In  either  case  the  superintendent  shall  serve  until 
the  next  annual  appointment  and  until  his  successor  shall  be 
appointed,  subject  to  removal  by  the  court  for  neglect  of  duty, 
incapacity  or  other  good  cause ;  provided,  in  case  of  vacancy  in 
the  superintendent's  office  the  county  court  may,  on  consulta- 
tion with  the  advisory  board,  fill  the  vacancy  until  the  next 
annual  selection. 

The  superintendent  shall  receive  such  pay  for  his  services  as 
the  court  may  allow,  but  shall  be  paid  only  for  the  time  actually 
employed,  and  in  no  case  shall  the  rate  of  pay  exceed  that 
allowed  the  county  surveyor. 

The  superintendent  shall  oversee  the  construction  and 
repair  of  dikes  and  dams,  and  shall  see  that  all  contracts  are 
faithfully  executed,  and  the  work  done  in  a  thorough  manner. 
After  the  dikes  are  completed  the  superintendent  shall  have 
the  power  to  employ  the  labor  necessary  to  maintain  them  at 
the  usual  rate  of  wages  allowed  to  laborers  on  the  county  road ; 
provided,  that  in  an  emergency  the  county  court  may  allow  a 
higher  rate  of  wages;  and  provided  further,  that  the  county 
court  may  with  the  approval  of  the  advisory  board  allow  work 
on  maintenance  to  be  done  by  contract. 

The  superintendent  shall  also,  between  the  1st  and  15th 
days  of  December  in  each  year,  file  with  the  county  court  an 
estimate  of  the  money  required  for  the  maintenance  of  the 
dikes  and  dams  for  the  succeeding  year;  and  such  estimates 
added  to  any  indebtedness  there  may  be  against  the  district 
shall  be  the  basis  of  the  tax  for  next  year.  The  advisory 
board  also  shall  file  with  the  county  court,  on  or  before  said 
15th  day  of  December  in  each  year,  an  estimate  of  the  money 
required  for  the  maintenance  of  the  dikes  and  dams  for  the 
next  succeeding  year  with  a  statement  of  the  work,  in  its 
opinion,  required  to  be  done,  which  estimates  the  court  may 


138  WATER  LAWS  OF  THE  STATE  OF  OREGON 


consider  in  making  its  levy.     [L.  1895,  p.  119,  §  8;  L.  1905,  c. 
199,  p.  330,  §  4;  L.  1913,  p.  503,  c.  264.] 

§  6156.  Bills,    How    Indorsed   and    Paid — Warrants    Receivable    for 
Taxes. 

All  bills  against  the  district  for  labor  performed,  material 
furnished,  or  on  other  accounts,  shall  first  be  indorsed  by  the 
superintendent  ,  and  when  approved  by  the  county  court,  shall 
be  paid  by  a  warrant  drawn  by  the  county  clerk  upon  the  fund 
of  the  district  upon  deposit  with  the  county  treasurer.  The 
clerk  shall  keep  a  separate  account  of  all  warrants  drawn  by 
him  upon  the  fund  of  the  district,  giving  the  date  of  the  war- 
rant, the  number  and  the  account  for  which  drawn.  All  war- 
rants drawn  upon  the  fund  of  the  district  shall  be  receivable 
for  taxes  due  on  account  of  that  fund.  The  warrants  shall  be 
subject  to  the  same  regulations  in  reference  to  payment  and 
interest  as  are  warrants  drawn  upon  the  general  fund  of  the 
county.  [L.  1895,  p.  119,  §  9 ;  B.  &  C.  §  4692.] 

§  6157.  Damages,  Claim  and  Assessment  for  and  Payment. 

If,  in  locating  and  establishing  the  dikes  and  dams  pro- 
vided for  in  this  act,  the  owner  or  owners  of  land  through  which 
they  pass  feel  aggrieved  on  the  score  of  right-of-way  or  other 
causes,  he  shall  have  proper  damage.  In  such  cases  claims  for 
damages  shall  be  filed,  and  the  amount  thereof  determined  in 
accordance  with  the  general  road  law  in  like  cases.  The  dam- 
ages allowed  shall  be  assessed  against  the  lands  of  the  district 
in  the  same  manner  as  the  tax  for  construction,  and  paid  to  the 
aggrieved  parties  in  the  same  manner  in  which  other  claims 
are  paid.  [L.  1895,  p.  120,  §  10;  B.  &  C.  §  4693.] 

§  6158.  Lands  Already  Diked,  Owners  May  Organize  Districts. 

Owners  of  land  already  diked  may  organize  districts  for  the 
repairs  and  maintenance  of  the  dikes  and  dams  thereof  by  com- 
plying with  the  routine  of  procedure  as  prescribed  in  this  act. 
Except,  that  the  petition  need  not  be  signed  by  more  persons 
than  the  owners  of  more  than  one-half  of  the  acreage  embraced 
in  the  limits  of  the  proposed  district.  The  board  of  viewers 
shall  provide  for  placing  the  dikes  and  dams  in  thorough  repair 
and  up  to  a  uniform  standard,  and  shall  levy  the  cost  of  such 
repairs  in  the  first  instance,  not  upon  the  assessed  valuation 
of  the  lands,  but  in  proportion  to  the  benefits  conferred.  The 
value  of  the  dikes  and  dams  as  they  stand  shall  be  estimated 
and  due  credit  given  to  the  lands  which  have  borne  the  original 
cost  of  construction ;  provided,  such  credit  shall  entitle  the 
land  to  no  consideration  greater  than  release  from  the  cost  of 
repairs  in  the  first  instance.  [L.  1895,  p.  120,  §  11;  B.  &  C. 
§  4694;  L.  1909,  c.  74,  p.  131,  §  1.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  139 

§6159.  Term    "Lands"    Used   in   Reference   to   Taxation   Does    Not 
Include  Improvements. 

When  the  term  "lands"  is  used  in  this  Act  in  reference  to 
taxation  it  shall  not  be  held  to  include  improvements  thereon ; 
but  the  roadbed  of  railway  lines  within  diking  districts  shall 
be  subject  to  taxation  for  diking  purposes.  [L.  1895,  p.  120, 
§12.] 

§  6160.  Rights  of  Way  May  Be  Vacated. 

The  county  court  shall  have  power  to  vacate  the  right-of- 
way  through  which  the  dikes  and  dams  pass,  in  the  same 
manner  in  which  county  roads  are  vacated,  and  the  right-of- 
way  shall  thereon  revert  to  the  original  owner.  [L.  1895, 
p.  120,  §13;B.  &C.  §4696.] 

§  6161.  Appeals  May  Be  Taken  From  Action  of  County  Court. 

Appeals  may  be  taken  from  the  action  of  the  county  court 
in  carrying  out  the  provisions  of  this  act  in  like  manner  as 
appeals  are  provided  for  under  the  road  law;  and  any  judg- 
ment resulting  therefrom  shall  be  an  expense  upon  the  dis- 
trict, and  not  upon  the  conuty,  and  shall  be  provided  for  in 
the  tax  levy  upon  the  district.  [L.  1895,  p.  120,  §  14;  B.  &  C. 
§  4697.] 

§  6162.  Diking  Line  May  Be  Changed. 

Any  person  through  whose  lands  dikes  shall  have  been  con- 
structed under  this  act  may  be  allowed  to  construct  a  dike 
upon  new  lines  between  any  two  points  on  the  original  line. 
In  such  case  the  owner  shall  file  application  with  the  county 
court,  giving  a  plat  of  the  proposed  change,  and  indorsed  by 
the  superintendent  of  the  district.  If  the  court  is  satisfied 
that  the  change  is  not  detrimental  to  the  district,  the  appli- 
cation shall  be  granted.  The  applicant  shall  construct  the  new 
dike  at  his  own  expense,  and  up  to  the  standard  of  the 
original,  of  which  fact  the  superintendent  shall  be  the  judge. 
The  dike  thus  constructed  shall  become  the  property  of  the 
district  in  the  same  manner  as  the  original,  and  subject  to 
the  same  regulation,  and  the  right-of-way  of  the  original  dike 
thereon  becomes  vacated.  [L.  1895,  p.  120,  §  15 ;  B.  &  C. 
§  4698.] 

(d)     FUNDING  THE  INDEBTEDNESS  OF  DRAINAGE  AND  DIKING 

DISTRICTS. 

§  6163.  When  Board   of   Trustees   of  Drainage   District   May   Issue 
Funding  Bonds. 

The  board  of  trustees  of  any  drainage  or  levee  district  hav- 
ing an  outstanding  indebtedness  of  not  less  than  $3.00  per 


140  WATER  LAWS  OF  THE  STATE  OF  OREGON 


acre  for  each  acre  of  land  included  in  such  district,  evidenced 
by  bonds  or  warrants  of  such  district  are  emopwered,  if  they 
deem  it  for  the  best  interests  of  such  district,  to  fund  or  refund 
the  same  or  any  part  thereof  and  issue  bonds  of  such  district 
therefor  in  sums  of  not  less  than  $100  nor  more  than  $1,000 
each,  having  not  more  than  twenty  years  to  run,  and  bearing 
a  rate  of  interest  not  execeeding  seven  per  centum  per  annum, 
payable  semi-annually,  which  bonds  shall  be  negotiable  in  form 
to  be  selected  by  said  board  of  trustees,  numbered  consec- 
utively, signed  by  the  president  of  the  board  and  counter- 
signed by  the  clerk  of  the  county,  who  shall  thereto  affix  his 
official  seal,  and  interest  coupons  shall  be  attached  to  each 
bond,  and  the  same  shall  then  be  delivered  to  the  treasurer  of 
said  district,  who  shall  stand  charged  with  the  same  upon  his 
official  bond  for  all  bonds  delivered  to  him  and  the  proceeds 
thereof.  [L.  1909,  c.  133,  p.  200,  §  1.] 

§  6164.  Bonds  to  Be  Exchanged  for  Indebtedness  or  Sold — Record 
Kept. 

The  board  of  trustees  shall  sell  or  exchange  the  bonds  so 
issued,  on  the  best  available  terms,  for  any  legal  indebtedness 
of  such  district,  and  if  such  sale  shall  be  made  for  money,  the 
proceeds  thereof  shall  be  applied  to  the  payment  of  liabilitiees 
existing  against  said  district  at  said  time.  When  they  are 
exchanged  for  bonds  or  warrants  or  other  legal  evidence  of 
district  indebtedness,  the  treasurer  shall  at  once  cancel  such 
evidence  of  indebtedness  by  indorsing  thereon  the  amount  for 
which  they  were  received,  the  word  "canceled"  and  the  date 
of  cancellation.  Said  treasurer  shall  keep  a  record  of  all 
bonds  issued,  sold,  or  exchanged,  as  aforesaid,  by  number,  date 
of  sale,  amount,  date  of  maturity,  the  name  and  postoffice 
address  of  the  purchasers,  and  if  exchanged,  what  evidence  of 
indebtedness  was  received  therefor,  which  record  shall  be 
open  at  all  times  for  public  inspection.  [L.  1909,  c.  133, 
P.  200,  §  2.] 

§  6165.  Tax  to  Pay  Interest  and  Sinking  Fund. 

The  board  of  trustees  shall  cause  to  be  levied  and  assessed 
each  year  upon  the  assessable  property  of  the  district,  in 
addition  to  the  levy  authorized  for  other  purposes,  a  sufficient 
sum  to  pay  the  interest  on  outstanding  bonds  issued  in  con- 
formity with  the  prvoisions  of  this  Act,  accruing  before  the 
next  annual  levy,  and  such  proportion  of  the  principal  as  in 
their  judgment  will  be  for  the  best  interest  of  said  district, 
to  create  and  raise  a  sinking  fund  to  retire  said  bonds  and 
to  be  used  for  no  other  purpose  whatever.  [L.  1909,  c.  133, 
P.  200,  §  3.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  141 


§  6166.  Notice  of  Redemption  of  Bonds  From  Sinking  Fund. 

Whenever  there  shall  be  in  the  said  sinking  fund  of  such 
district  a  surplus  of  $500  or  more,  over  and  above  the  interest 
maturing  before  the  next  levy,  the  treasurer  shall  give  notice 
for  two  weeks  in  one  or  more  newspapers  of  general  circula- 
tion, printed  and  published  in  the  county  in  which  such  district 
was  first  organized,  stating  the  amount  of  such  surplus,  and 
that  on  the  day  and  hour  named  in  such  notice,  sealed  prop- 
ositions will  be  received  at  his  office  for  the  surrender  of  bonds 
of  the  district  and  shall,  at  the  time  and  place  named,  open 
the  propositions  and  accept  the  lowest  bid;  provided,  that  na 
bid  shall  be  accepted  for  an  amount  exceeding  the  par  value 
of  such  bonds  with  accrued  interest  thereon  and  five  per  cent 
premium,  and  if  bids  are  not  offered  at  said  figure,  or  less, 
sufficient  to  exhaust  the  amount  of  the  surplus  on  hand,  the 
board  of  trustees  may  then  call  in  any  bond  or  bonds  of  said 
district,  giving  the  numbers  thereof  in  the  exact  order  of  their 
issuance,  beginning  with  the  lowest  or  first  number,  and 
redeem  the  same  at  the  par  value  and  five  per  cent  premium 
with  accrued  interest  to  date  of  such  recall,  and  thereafter 
interest  thereon  will  cease  and  the  amount  due  thereon  will 
be  set  aside  for  the  payment  of  such  bond  or  bonds  whenever 
presented.  [L.  1909,  c.  133,  p.  201,  §  4.] 

(e)     ARTESIAN  WELLS. 

§  6232.  County  Courts  to  Locate  Sites  for  Artesian  Wells. 

The  county  court  of  any  county  in  this  State  shall  have 
power  as  hereinafter  provided  to  locate  sites  for  artesian  wells 
upon  lands  to  be  benefited  thereby  within  the  limits  of  their 
respective  counties.  [L.  1909,  c.  69,  p.  119,  §  1.] 

§  6233.  Petition  for   Creation   of  District — Boundaries,   How  Deter- 
mined. 

Whenever  the  majority  of  the  owners  of  real  estate  repre- 
senting also  the  majority  of  the  number  of  acres  of  land  of 
any  proposed  district  in  any  county  in  this  State  desire  to 
bore  for  the  purpose  of  securing  artesian  water,  they  shall 
present  a  petition  to  the  county  court  of  the  county  asking 
the  county  court  to  create  a  district  large  enough  to  include 
land  owned  by  all  such  petitioners  where  such  district  is 
proposed  to  be  created;  which  petition  shall  describe  by  land 
subdivisions  or  metes  and  bounds,  as  the  case  may  be,  the 
exact  number  of  acres  in  such  proposed  district,  and  shall 
also  show  the  assessed  value  as  assessed  by  the  county  assessor 
at  the  last  annual  assessment,and  shall  also  propose  the  num- 
ber of  mills  to  be  levied  for  the  purpose  of  securing  said 


142  WATER  LAWS  OF  THE  STATE  OF  OREGON 


artesian  well;  provided,  the  county  court  shall,  upon  the 
objection  of  the  owner  of  any  land  within  the  proposed  district 
naturally  or  artificially  irrigated  or  having  thereon  springs, 
lakes,  streams,  or  other  water  courses,  from  which  the  same 
can  be  supplied  with  water,  exclude  such  land  therefrom ;  and 
provided,  such  district  shall  be  as  compact  in  form  as  prac- 
ticable. [L.  1909,  c.  69,  p.  119,  §  2.] 

§  6234.  Court  May  Order  Election. 

When  said  petition  is  filed,  the  county  court  shall  there- 
after, at  its  regular  session,  or  at  any  special  session  called  for 
that  purpose,  if  upon  thorough  examination  such  court  shall 
find  the  petition  to  be  regular,  order  an  election  in  said  district, 
naming  the  place  of  election  and  time  when  said  election  shall 
be  held;  provided,  that  said  election  shall  not  be  held  until 
after  notice  thereof  is  given  as  hereinafter  provided.  [L. 
1909,  c.  69,  p.  120,  §  3.] 

§  6235.  Notices  of  Election,  Form  and  Service. 

At  least  thirty  days  previous  to  any  election  hereunder  the 
county  court  shall  deliver  to  the  sheriff  of  the  county  at  least 
five  notices  of  the  election  to  be  held  in  any  county  or  in  any 
proposed  district  in  any  county  voting  on  the  question.  Said 
notices  shall  be  substantially  in  the  following  form: 
ARTESIAN  WELL  ELECTION  NOTICE. 

Notice  is  hereby  given  that  on—  — ,  the —  — day  of 
— ,  19 — ,  at  the—  —in  the  county  of—  — ,  an  election 
will  be  held  to  determine  whether  the  owners  of  real  estate 
within  the  following  described  bounds  (here  insert  the  descrip- 
tion of  the  proposed  district),  desire  to  bore  within  the  said 
prescribed  bounds  for  the  purpose  of  securing  artisian  water, 
which  said  election  shall  be  held  at—  —o'clock  in  the  morn- 
ing, and  will  continue  until—  —o'clock  in  the  afternoon  of 
the  said  day. 

Dated  this day  of ,  19—. 


County  Clerk  of—  — County,  Oregon. 
It  shall  be  the  duty  of  the  sheriff  at  least  thirty  days  before 
any  election  hereunder  to  post  said  notices  in  public  places 
within  said  proposed  district,  one  of  which  said  notices  shall 
be  posted  at  the  place  designated  by  the  county  court  as  the 
polling  place.  [L.  1909,  c.  69,  p.  120,  §  4.] 

§  6236.  Ballots. 

Before  the  said  election  it  shall  be  the  duty  of  the  county 
clerk  to  arrange  the  ballots  and  have  them  printed  in  sub- 
stantially the  following  form: 


WATER  LAWS  OP  THE  STATE  OP  OREGON  143 


BALLOT  UPON   THE  QUESTION   OF  BORING  FOR  ARTESIAN  WATER. 

(Date  of  election.) 

Vote  for  or  against  boring  for  artesian  water. 
Mark  X  between  number  and  answer  voted  for. 

12.  For  artesian  well  tax — Yes. 

13.  For  artesian  well  tax — No. 
[L.  1909,  c.  69,  p.  120,  §  5.] 

§  6237.  General  Election  Laws  Apply. 

In  all  elections  hereunder  and  in  all  matters  and  proceed- 
ings not  herein  specified  the  provisions  of  the  general  election 
laws  of  the  State  shall  apply  so  far  as  the  same  is  applicable. 
[L.  1909,  c.  69,  p.  120,  §  6.] 

§  6238.  Levy  of  Taxes — State  Engineer  to  Be  Consulted  As  to  Location 

— Contract  With  Land  Owner. 

Within  thirty  days  after  such  election  the  county  court  at  a 
regular  or  special  session  called  for  that  purpose  shall  canvass 
the  vote,  and  if  it  be  found  that  a  majority  of  the  votes  cast 
are  in  favor  of  the  tax  for  boring  for  artesian  water,  they  will 
then  place  in  the  next  general  levy  the  number  of  mills  neces- 
sary to  create  such  tax  upon  the  assessed  value  of  the  property 
within  the  district,  which  levy  shall  be  included  in  and  become 
a  part  of  the  general  tax  levy  upon  the  real  property  within 
the  district.  After  fifty  per  cent  of  the  special  tax  has  been 
paid  into  the  county  treasury  the  county  court  shall  call  into 
consultation  the  State  Engineer,  who,  together  with  the  county 
judge  and  county  commissioners,  shall  proceed  to  locate  the 
well  in  the  proposed  district,  which  shall  be  ascertained  in  the 
following  manner : 

1.  Centralization  of  location; 

2.  Location  with  reference  to  altitude  and  the  possibilities 
of  its  serving  the  greatest  number  of  people  within  the  dis- 
trict, providing  the  well  is  a  success ; 

3.  Location  relative  to  indications  for  securing  such  water ; 

4.  After  ten  days'  notice  by  posting  in  three  conspicuous 
places  within  the  district,   bids  from   the   various   property 
owners  as  a  bonus  for  location,  providing  the  well  is  a  success ; 

5.  Location  with  reference  to  bids  for  the  well  if  it  is  not 
artesian,  providing  it  furnishes  a  sufficient  supply  of  water 
by  pumping  for  the  land  upon  which  it  is  located. 

After  taking  into  consideration  the  above  inducements  and 
consulting  the  State  Engineer  as  to  the  most  advantageous 
point,  and  taking  into  cons  deration  the  amount  of  money  to 
be  paid  for  the  same,  the  county  judge,  with  the  county  com- 
missioners, shall  decide  upon  the  point  of  location,  and  such 
well  shall  be  located  at  such  point  so  selected;  provided,  the 


144  WATER  LAWS  OP  THE  STATE  OP  OREGON 

party  owning  the  land  shall  at  once  enter  into  a  contract  with 
the  county  judge  and  the  county  commissioners  permitting 
them  to  enter  upon  such  lands,  giving  them  good  and  sufficient 
room  for  their  drills,  wells,  machinery,  camps,  stables,  and 
residences  until  such  well  is  completed,  and  if  such  owner 
refuses  to  enter  into  such  a  contract,  then  such  well  shall  be 
placed  at  the  next  most  advantageous  point  selected  by  said 
county  court,  where  the  owner  of  such  land  is  willing  to  enter 
into  such  a  contract  with  said  court;  and  the  county  court  is 
hereby  authorized  to  enter  into  a  contract  with  the  party 
offering  the  bonus  for  the  location  of  said  artesian  well. 
[L.  1909,  c.  69,  p.  121,  §  7.] 

§  6239.  Reservations  for  Public  Uses. 

Whenever  a  contract  is  entered  into  by  the  county  court 
within  a  district  or  with  any  person  under  the  provisions  of 
this  Act,  the  county  court  shall  at  the  same  time,  and  in  a 
manner  not  inconsistent  with  the  other  provisions  of  this  Act, 
reserve  for  the  benefit  of  the  public  the  right,  in  case  such 
artesian  well  is  a  success  and  artesian  water  is  found,  to 
appropriate  sufficient  water  from  said  well  for  the  purpose 
of  the  watering  of  the  live  stock  and  for  such  other  uses  as 
may  by  said  court  be  deemed  essential;  but  such  intention  to 
so  appropriate  shall  be  made  by  said  county  court,  and  any 
contract  or  agreement  made  under  Section  6238  shall  be  made 
with  reference  to  such  specified  reservation  and  right  of  appro- 
priation by  said  county  court  for  public  uses.  [L.  1909,  c.  69, 
P.  121,  §  8.] 

§  6240.  Regulations  for  Distribution  of  Water. 

Whenever  a  tax  is  levied  and  a  well  bored  under  the  pro- 
visions of  this  Act,  and  such  well  is  a  success,  the  county  court 
shall  adopt  such  rules  and  regulations  governing  the  distribu- 
tion of  water  as  may  be  deemed  for  the  best  interest  of  the 
whole  district  wherein  such  well  is  situated  for  the  general 
supervision  and  control  of  such  wells  and  the  waters  flowing 
therefrom;  provided,  that  such  regulation,  supervision,  and 
control  shall  not  be  inconsistent  with  any  contract  or  agree- 
ment entered  into  by  said  county  court  with  any  individual  as 
provided  for  in  Section  6238.  [L.  1909,  c.  69,  p.  122,  §  9.] 

§  6241.  Artesian  Well  Defined. 

For  the  purpose  of  this  Act  an  artesian  well  is  defined  to  be 
any  artificial  hole  made  in  the  ground  not  less  than  six  inches 
in  diameter  at  the  bottom,  through  which  water  naturally 
flows  from  subteranean  sources  to  the  surface  of  the  ground 
for  any  length  of  time.  [L.  1909,  c.  69,  p.  122,  §  10.] 


WATER  LAWS  OF  THE  STATE  OF  OREGON  145 


§  6242.  Land  Not  to  Be  Taxed  Twice  Within  Year. 

After  any  tract  of  land  has  been  taxed  under  the  provisions 
of  this  Act  no  other  tax  shall  be  levied  against  said  lands 
under  the  provisions  of  this  Act  within  one  year  after  such 
first  levy  for  the  location  of  a  second  well  or  adjacent  wells. 
[L.  1909,  c.  69,  p.  122,  §  11.] 

§  6243.  None  But  Land  Owner  May  Vote. 

No  person  shall  be  allowed  to  vote  at  any  election  held  under 
the  provisions  of  this  Act  who  is1  not  an  owner  of  real  estate 
in  the  district  proposed  to  be  created.  [L.  1909,  c.  69,  p.  122, 
§12.] 

§  6244.  Disposition  of  Unused  Residue  of  Tax  Money. 

Should  any  balance  in  excess  of  $1,000  be  left  of  the  money 
collected  by  the  county  treasurer,  or  of  the  moneys  collected 
for  such  bonus  as  mentioned  in  Section  6238  and  not  otherwise 
expended  in  perfecting  any  artesian  well,  then  the  same  shall 
be  credited  the  following  year  to  the  general  taxes  of  such 
property  as  has  paid  the  special  tax  collected  under  the  pro- 
visions of  this  Act  in  proportion  to  the  assessed  value  when 
such  levy  was  made.  If  the  sum  should  be  $1,000  or  less,  then 
the  balance  of  said  fund  shall  be  turned  over  to  the  county 
court  to  be  expended  upon  the  highways  within  such  artesian 
well  district.  [L.  1909,  c.  69,  p.  122,  §  13.] 


(f)     DISTRICT  IMPROVEMENT  ACT. 

Section  1.  Any  number  of  landowners  not  less  than  three 
may  incorporate  themselves  for  the  purpose  of  irrigating  or 
draining  or  irrigating  and  draining  their  land  in  the  manner 
provided  in  this  Act. 

Section  2.  Such  persons  shall  make  and  subscribe  written 
articles  or  incorporation  in  triplicate  and  acknowledge  the 
same  before  some  officer  authorized  to  take  the  acknowledge- 
ment of  deeds,  and  file  one  of  such  articles  in  the  office  of  the 
Secretary  of  State,  another  in  the  county  clerk's  office  of  the 
county  or  counties  where  the  land  incorporated  is  situated, 
and  retain  a  third  in  the  possession  of  the  corporation. 

Section  3.  The  articles  of  incorporation  or  a  certified  copy 
of  the  one  filed  with  the  Secretary  of  State  or  county  clerk, 
shall  be  prima  facie  evidence  of  the  existence  of  such  corpora- 
tion. 

Section  4.    The  articles  of  incorporation  shall  specify : 

1.  The  name  assumed  by  the  corporation  and  by  which 
name  it  shall  be  known,  which  name  must  include  the  words 


146  WATER  LAWS  OF  THE  STATE  OF  OREGON 

"District  Improvement  Company,"  and  the  duration  of  the 
same. 

2.  The  particular  land  to  be  improved  by  the  works  of  the 
company,  'describing  said  land  by  legal  subdivisions  so  far  as 
possible  and  setting  forth  the  names  of  the  owners  thereof  and 
the  total  number  of  acres. 

3.  In  general  but  clear  language,  the  purpose  and  intent 
of  the  corporation  and  describe  in  general  language  the  pro- 
posed plan  of  improvement  whether  of  irrigation  or  drainage 
or  both. 

4.  The  number  of  directors  not  less  than  three  nor  more 
than  nine  and  the  names  of  those  first  holding  such  offices  and 
the  mode  and  times  of  the  election  of  their  successors  in  office. 

5.  The  location  of  the  principal  office  of  the  corporation 
for  the  transaction  of  business  which  must  be  in  a  county  where 
at  least  a  portion  of  the  land  to  be  improved  is  situated. 

Section  5.  Upon  the  filing  of  said  articles  of  incorpora- 
tion, the  owners  of  all  the  land  described  in  said  articles  of  in- 
corporation shall  make,  subscribe  and  acknowledge,  before 
some  person  authorized  to  take  the  acknowledgement  of  deeds, 
a  notice  to  whom  it  may  concern  that  the  lands  described  in 
said  notice  will  be  improved  by  irrigation  or  drainage  or  both 
by  said  corporation  under  the  provisions  of  this  Act.  Said 
notice  shall  be  recorded  in  the  office  where  deeds  and  other 
instruments  affecting  the  title  to  real  property  are  recorded, 
of  the  county  or  counties  where  the  land  is  situated.  From 
and  after  the  recording  of  said  notice  all  the  debts  and  obliga- 
tions of  said  corporation  theretofore  or  thereafter  created 
shall  be  a  lien  upon  all  the  land  described  in  said  notice  prior 
to  every  lien  attaching  to  said  land  subsequent  to  the  date  of 
recording  said  notice,  except  State,  county  and  school  taxes, 
whether  such  debt  or  obligation  of  said  corporation  be  in  exis- 
tence at  the  time  such  later  lien  attaches,  or  be  created  after- 
wards ;  and  said  lien  shall  not  be  personal,  but  shall  be  an  obli- 
gation upon  the  land  and  shall  run  with  the  land. 

Section  6.  Every  owner  of  land  described  in  said  articles 
of  incorporation  is  a  member  of  said  corporation  and  said  mem- 
bership is  lost  or  gained  through  the  respective  sale  or  purchase 
of  any  of  said  land  as  the  case  may  be.  At  all  meetings  of  the 
members'  of  said  corporation,  each  member  who  shall  attend  in 
person  or  by  proxy,  appointed  in  writing,  shall  be  entitled  to 
one  vote  for  each  acre  of  said  land  so  owned  by  him.  A  major- 
ity vote  shall  govern  in  all  cases  except  as  otherwise  specially 
provided  by  law.  At  any  meeting  of  the  members  of  the  cor- 
poration any  officer  may  be  removed  and  another  elected  in  his 
place.  There  must  be  at  least  one  regular  meeting  of  the  mem- 
bers in  each  year  and  there  shall  be  such  other  meetings  as 


WATER  LAWS  OF  THE  STATE  OF  OREGON  147 


may  be  called  under  the  provisions  of  the  by-laws  of  the  cor- 
poration. 

Section  7.  Upon  making  and  filing  the  articles  of  incor- 
poration and  recording  of  the  notice,  as  herein  provided,  the 
persons  appointed  in  said  articles  as  directors  and  their  suc- 
cessors' in  office,  associates  and  assigns,  by  the  name  assumed 
in  such  articles  shall  thereafter  be  deemed  a  body  corporate 
with  power — 

1.  To  sue  and  be  sued. 

2.  To  contract  and  be  contracted  with. 

3.  To  have  and  use  a  corporate  seal  and  the  same  to  alter 
at  pleasure. 

4.  To  purchase,  condemn  by  the  power  of  eminent  domair, 
possess  and  dispose  of  such  real  and  personal  property  as  may 
be  necessary  and  convenient  to  carry  into  effect  the  objects  of 
the  incorporation,  and  to  take,  hold  and  possess  and  dispose  of 
all  real  and  personal  property  donated  to  such  corporation  by 
the  United  States  or  by  any  state,  territory,  county,  city  or 
other  municipal  corporation  or  by  any  person,  firm,  associa- 
tion or  private  corporation,  for  the  purpose  of  aiding  in  the 
objects  of  such  corporation. 

5.  To  appoint  such  subordinate  officers,   employees  and 
agents  as  the  business  of  the  corporation  may  require  and  pre- 
scribe their  duties  and  compensation. 

6.  To  make,  establish  or  amend  by-laws,  rules  and  regula- 
tions, not  inconsistent  with  the  laws  of  the  State,  and  the  arti- 
cles of  incorporation,  prescribing  the  manner  and  mode  of  con- 
ducting the  business  of  the  corporation,  distributing  and  using 
water  in  irrigation,  usage  of  any  drainage  works,  and  enforc- 
ing the  collection  of  rates,  tolls,  charges,  fees,  fines  and  assess- 
ments, but  such  by-laws,  rules  and  regulations  must  be  ratified 
by  two-thirds  of  the  votes  of  the  members  of  said  corporation. 

7.  To  prescribe,  fix,  make,  assess  and  charge  and  collect 
rates,  tolls,  fees,  fines,  and  charges  for  the  use  of  water,  or  for 
the  use  of  any  of  the  irrigation  or  drainage  works  of  the  com- 
pany, or  for  the  violation  of  any  of  the  by-laws,  rules  and  regu- 
lations of  the  company  and  such  rates,  tolls,  fines,  fees  and 
charges  shall  be  a  lien  on  the  crops  produced  as  prescribed  in 
Section  6544  of  Lord's  Oregon  Laws,  and  also  upon  the  land 
to  which  the  water  or  drainage  was  furnished. 

8.  To  make,  levy  and  collect  an  assessment  or  assessments 
either  ratably,  or  in  proportion  to  the  benefits  received  as  the 
by-laws  may  provide  upon  the  lands  described  in  the  articles 
of  incorporation  for  the  purpose  of  paying  any  or  all  of  the 
expenses,  debts  or  obligations  of  the  company;  provided,  that 
in  no  case  shall  there  be  more,  than  one  assessment  paid  upon 
any  lands  in  any  one  year. 


148  WATER  LAWS  OF  THE  STATE  OP  OREGON 


Section  8.  No  person  is  eligible  to  the  office  of  director 
unless  he  is  a  member  of  the  corporation.  The  directors  when 
elected  and  qualified,  shall  meet  and  organize  and  elect  one 
of  their  number  president,  who  shall  preside  at  their  meetings 
and  at  the  meetings  of  the  members.  They  shall  appoint  a 
secretary  who  shall  keep  a  fair  and  correct  record  of  all  the 
official  business  of  the  corporation.  From  the  first  meeting 
of  the  directors,  the  powers  vested  in  the  corporation  are 
exercised  by  them  or  by  their  officers  or  agents  under  their 
direction  except  as  otherwise  specially  provided  by  law. 

Section  9.  The  rates,  tolls,  fees,  charges,  fines  and  assess- 
ments for  any  one  year  shall  become  due  and  payable  on  or 
before  the  first  day  of  October  of  said  year,  or  .as  provided  by 
the  by-laws  of  the  corporation,  and  the  lien  of  the  same  upon 
any  of  the  lands  described  in  the  articles  of  incorporation  may 
be  enforced  and  foreclosed  by  a  suit  in  equity  and  upon  the 
sale  of  sa'd  land  on  such  foreclosure  the  corporation  or  any 
member  thereof  may  be  a  bidder  and  purchaser. 

Section  10.  At  the  first  or  subsequent  meeting  of  the  mem- 
bers of  the  corporation,  said  members  by  resolution  shall  desig- 
nate and  authorize  the  expenditure  of  a  certain  amount  of 
money  for  preliminary  investigation  and  report  upon  the  plans 
and  cost  of  construction  of  the  irrigation  or  drainage  system 
as  the  case  may  be.  The  directors  shall  then  secure  a  compe- 
tent engineer  who  shall  make  such  investigation,  and  draw 
detailed  plans  and  specifications  and  make  a  report  upon  the 
same,  including  an  estimate  of  the  probable  cost  of  construc- 
tion. Such  plans  and  specifications  and  report  shall  be  sub- 
mitted to  a  meeting  of  the  members  of  said  corporation  for 
adoption.  Such  adoption  must  be  made  by  resolution  passed 
by  a  two-thirds  vote.  If  said  plans,  specifications  and  report 
are  adopted,  said  meeting  shall  then  pass  a  resolution  author- 
izing the  issue  of  bonds  in  a  certain  sum.  Said  sum  designated 
shall  not  be  less  than  one  hundred  twenty  per  centum  of  the 
estimated  cost  of  construction  as  shown  by  said  adopted  report. 
A  certified  copy  of  said  resolution  shall  be  recorded  in  the 
office  of  the  county  or  count:es  in  which  the  land  is  situated, 
where  deeds  to  real  property  are  recorded.  Being  so  author- 
ized, the  board  of  directors  may  issue  and  sell  bonds  of  the  cor- 
poration at  such  times  and  in  such  amounts  as  may  be  neces- 
sary not  exceeding  the  total  authorized  amount.  Said  bonds 
shall  be  in  denominations  of  five  hundred  dollars,  or  of  one 
thousand  dollars.  They  shall  bear  interest  from  date  of  issue 
at  not  more  than  six  percentum  per  annum,  payable  semi- 
annually  on  the  first  day  of  May  and  November  of  each  year, 
and  shall  run  from  ten  to  twenty  years  from  date  of  issue ;  pro- 
vided, that  after  said  bonds  have  run  for  ten  years  said  corpo- 


WATER  LAWS  OF  THE  STATE  OF  OREGON  149 

ration  shall  pay  at  least  one-tenth  of  said  bond  issue  annually 
until  all  of  said  bonds  are  paid.  Said  bonds  thus  paid  shall  be 
paid  on  interest  paying  dates.  Said  bonds  shall  not  be  sold  for 
less  than  ninety  per  centum  of  their  face  value.  If  said  bonds 
are  received  in  payment  of  any  obligation  of  the  corporation 
they  shall  be  received  at  face  value  plus  accrued  interest.  Said 
bonds  shall  be  numbered  consecutively  and  the  lowest  numbers 
paid  off  first,  and  may  be  issued  all  at  the  same  time  or  in 
such  amounts  as  the  board  of  directors  deem  necessary.  If  the 
bonds  first  sold  be  not  sufficient  to  complete  the  construction 
of  the  works,  another  issue  of  a  definite  amount  may  be  author- 
ized by  a  two-thirds  vote  of  the  members. 

Section  11.  The  articles  of  incorporation  of  any  corpora- 
tion organized  under  this  Act  may  at  any  time  be  amended  so 
as  to  include  other  land,  or  exclude  any  part  theretofore 
included.  Such  amendment  shall  not  effect  the  date  of  prior- 
ity of  the  lien  of  said  corporation  upon  any  land  but  as  to  any 
new  land  included  by  such  amendment  the  lien  shall  attach 
from  the  date  of  the  recording  of  the  amended  notice ;  no  land 
can  be  excluded  until  its  proportionate  share  of  all  existing 
debts  of  the  corporation  has  been  paid. 

Section  12.  Every  corporation  organized  under  the  pro- 
visions of  this  Act  shall  pay  to  the  Secretary  of  State,  upon 
presentation  of  its  articles  of  incorporation  for  filing  an  organ- 
ization fee,  and  shall  at  the  same  time  pay  the  annual  license 
fee  hereinafter  provided  for  the  succeeding  fraction  of  a  fiscal 
year.  The  organization  fee  hereinbefore  mentioned  shall  be 
two  dollars  for  every  thousand  acres  or  fraction  thereof 
described  in  the  said  articles  of  incorporation.  The  license  fee 
hereinbefore  mentioned  shall  be  two  dollars  for  every  thou- 
sand acres  or  fraction  thereof  described  in  the  said  articles  of 
incorporation,  and  after  the  first  payment  thereof  to  the  Sec- 
retary of  State  as  above  set  forth  shall  be  paid  each  year  in 
advance  to  the  State  Treasurer  as  other  corporate  license  fees 
are  paid.  [L.  1911,  c.  172,  p.  256.] 

The    validity    of    a    district    improve-  on   business   as   such   cannot   be   collat- 

nient  corporation  cannot  be  questioned  erally    attacked    by    a    private    person, 

in    a    suit    to    restrain    the    issuance    of  (Tyree    v.    Crystal    Dist.    Improvement 

bonds    by    it    since    the    existence    of    a  Co.,   126   Pac.    605.) 
de  facto  corporation  organized  to  carry 


150  WATER  LAWS  OF  THE  STATE  OF  OREGON 


PART  IV. 


FEDERAL  STATUTES  AND  STATE  DESERT  LAND 

LAWS. 

(a)     RECOGNITION  OF  EXISTING  WATER  RIGHTS. 

Federal  Statutes  Recognizing  Vested  and  Accrued  Water  Rights. 

Whenever,  by  priority  of  possession,  rights  to  the  use  of 
water  for  mining,  agricultural,  manufacturing,  or  other  pur- 
poses, have  vested  and  accrued,  and  the  same  are  recognized 
and  acknowledged  by  the  local  customs,  laws  and  the  decisions 
of  courts,  the  possessors  and  owners  of  such  vested  rights  shall 
be  maintained  and  protected  in  the  same ;  and  the  right-of-way 
for  the  construction  of  ditches  and  canals  for  the  purposes 
herein  specified  is  acknowledged  and  confirmed ;  but  whenever 
any  person  in  the  construction  of  any  ditch  or  canal,  injures  or 
damages  the  possession  of  any  settler  on  the  public  domain,  the 
party  committing  such  injury  or  damage  shall  be  liable  to  the 
party  injured  for  such  injury  or  damage.  [Section  2339,  Act 
of  July  26,  1866,  c.  262,  14  Stat.  L.] 

The     above     section     of    the     federal  of   water   for   the   purposes  specified   in 

statute     constituted     a     recognition     of  that    act:      Davis    v.    Chamberlain,    51 

pre-existing     rights     rather     than     an  Or.    304  ;    Broders   v.    Water   Comixini/. 

authorization    of    the    creation    of    new  MM     I".     S.     274  -United    States    v.    Rio 

ones.       Prior    to    the    passage    of    this  Grande     Company,     174     U.      S.      690 ; 

act    or    any     laws    upon     the     subject,  Giitierres    v.    Albuquerque    Land    Com- 

water    from    streams    flowing    through  p«nv,  188  U.   S.   545;   Hough  v.  Porter, 

the    public    domain    had    been    diverted  51   Or.   387. 

and  used  for  the  purposes  specified  in  "In  this  State,  the  doctrine  of  the 
the  act,  and  priority  in  the  diversion  right  to  water  by  prior  appropriation 
and  use  determined  the  rights  of  con-  for  mining  or  irrigating  lands  has  not 
flicting  claimants.  This  procedure  was  been  adopted  or  applied  except  as  the 
acquiesced  in  by  the  government  by  parties  have  acquired  their  rights 
tacit  consent,  and  the  foregoing  act  under  the  act  of  Congress  of  1866." 
was  in  recognition  of  the  rights  which  Ximmonfi  v.  Winters,  21  Or.  42;  Car- 
had  been  acquired  thereby  to  the  use  son  v.  Gentner,  33  Or.  512. 

Patents  Granted  Subject  to  Certain  Rights. 

All  patents  granted,  or  pre-emption  or  homesteads  allowed, 
shall  be  subject  to  any  vested  and  accrued  water  rights,  or 
rights  to  ditches  and  reservoirs  used  in  connection  with  such 
water  rights,  as  may  have  been  acquired  under  or  recognized 
by  the  preceding  section.  [Section  2340,  Act  of  July  9,  1870, 
c.  235,  16  Stat.  L.  218.] 

(6)     DAM  ACT  OF  1910. 

Water  Power  Projects  on  Navigable  Waters. 

Section  1.  That  when  authority  has  been  or  may  hereafter 
be  granted  by  Congress,  either  directly  or  indirectly  or  by  any 
official  or  officials  of  the  United  States,  to  any  persons,  to  con- 
struct and  maintain  a  dam  for  water  power  or  other  purpose 


WATER  LAWS  OF  THE  STATE  OF  OREGON  151 

across  or  in  any  of  the  navigable  waters  of  the  United  States, 
such  dam  shall  not  be  built  or  commenced  until  the  plans  and 
specifications  for  such  dam  and  all  accessory  works,  together 
with  such  drawings  of  the  proposed  construction  and  such 
maD  of  the  proposed  location  as  may  be  required  for  a  full 
understanding  of  the  subject,  have  been  submitted  to  the  Sec- 
retary of  War  and  Chief  of  Engineers  for  their  approval,  nor 
until  they  shall  have  approved  such  plans  and  specifications 
and  the  location  of  such  dam  and  the  accessory  works;  and 
when  the  plans  and  specifications  for  any  dam  to  be  con- 
structed under  the  provisions  of  this  Act  have  been  approved 
by  the  Chief  of  Engineers  and  by  the  Secretary  of  War,  it 
shall  not  be  lawful  to  deviate  from  such  plans  or  specifications 
either  before  or  after  completion  of  the  structure  unless  the 
modification  of  such  plans  or  specifications  has  previously 
been  submitted  to  and  received  the  approval  of  the  Chief  of 
Engineers  and  of  the  Secretary  of  War;  provided,  that  in 
approving  the  plans,  specifications,  and  location  of  any  dam, 
such  conditions  and  stipulations  may  be  imposed  as  the  Chief 
of  Engineers  and  the  Secretary  of  War  may  deem  necessary 
to  protect  the  present  and  future  interests  of  the  United 
States,  which  may  include  the  condition  that  the  persons  con- 
structing or  maintaining  such  dam  shall  construct,  maintain, 
and  operate  without  expense  to  the  United  States,  in  connec- 
tion with  any  dam  and  accessory  or  appurtenant  works,  a 
lock  or  locks,  booms,  sluices,  or  any  other  structure  or  struc- 
tures which  the  Secretary  of  War  and  the  Chief  of  Engineers 
or  Congress  at  any  time  may  deem  necessary  in  the  interests 
of  navigation,  in  accordance  with  such  plans  as  they  may 
approve,  and  also  that  whenever  Congress  shall  authorize  the 
construction  of  a  lock  or  other  structures  for  navigation  pur- 
poses in  connection  with  such  dam,  the  persons  owning  such 
dam  shall  convey  to  the  United  States,  free  of  cost,  title  to  such 
land  as  may  be  required  for  such  construction  and  approaches, 
and  shall  grant  to  the  United  States  free  water  power  or  power 
generated  from  water  power  for  building  and  operating  such 
constructions ;  provided  further,  that  in  acting  upon  said  plans 
as  aforesaid  the  Chief  of  Engineers  and  the  Secretary  of 
War  shall  consider  the  bearing  of  said  structure  upon  a  com- 
prehensive plan  for  the  improvement  of  the  waterway  over 
which  it  is  to  be  constructed  with  a  view  to  the  promotion  of  its 
navigable  quality  and  for  the  full  development  of  waterpower ; 
and,  as  a  part  of  the  conditions  and  stipulations  imposed  upon 
them,  shall  provide  for  improving  and  developing  navigation, 
and  fix  such  charge  or  charges  for  the  privilege  granted  as  may 
be  sufficient  to  restore  conditions  with  respect  to  navigability 
as  existing  at  the  time  such  privilege  be  granted  or  reimburse 


152  WATER  LAWS  OF  THE  STATE  OF  OREGON 

the  United  States  for  doing  the  same,  and  for  such  additional 
or  further  expense  as  may  be  incurred  by  the  United  States 
with  reference  to  such  project,  including  the  cost  of  any  inves- 
tigations necessary  for  approval  of  plans  and  of  such  super- 
vision of  construction  as  may  be  necessary  in  the  interests  of 
the  United  States ;  provided  further,  that  the  Chief  of  Engin- 
eers and  the  Secretary  of  War  are  hereby  authorized  and 
directed  to  fix  and  collect  just  an'd  proper  charge  or  charges 
for  the  privilege  granted  to  all  dams  authorized  and  con- 
structed under  the  provisions  of  this  Act  which  shall  receive 
any  direct  benefit  from  the  construction,  operation  and  main- 
tenance by  the  United  States  of  storage  reservoirs  at  the  head- 
waters of  any  navigable  streams  or  from  the  acquisition,  hold- 
ing, and  maintenance  of  any  forested  watershed,  or  lands 
located  by  the  United  States  at  the  headwaters  of  any  naviga- 
ble stream  wherever  such  shall  be,  for  the  development, 
improvement,  or  preservation  of  navigation  in  such  streams  in 
which  such  dams  may  be  constructed. 

Section  2.  That  the  right  is  hereby  reserved  to  the  United 
States  to  construct,  maintain,  and  operate,  in  connection  with 
any  dam  built  in  accordance  with  the  provisions  of  this  Act,  a 
suitable  lock  or  locks,  booms,  sluices,  or  any  other  structures 
for  navigation  purposes,  and  at  all  times  to  control  the  said 
dam  and  the  level  of  the  pool  caused  by  said  dam  to  such  an 
extent  as  may  be  necessary  to  provide  proper  facilities  for 
navigation. 

Section  3.  That  the  persons  constructing,  maintaining,  or 
operating  any  dam  or  appurtenant  or  accessory  works,  in 
accordance  with  the  provisions  of  this  Act,  shall  be  liable  for 
any  damage  that  may  be  inflicted  thereby  upon  private  prop- 
erty, either  by  overflow  or  otherwise.  The  persons  owning 
or  operating  any  such  dam,  or  accessory  works,  subject  to  the 
provisions  of  this  Act,  shall  maintain,  at  their  own  expense, 
such  lights  and  other  signals  thereon  and  such  f  ishways  as  the 
Secretary  of  Commerce  and  Labor  shall  prescribe,  and  for  fail- 
ure so  to  do  in  any  respect  shall  be  deemed  guilty  of  a  misde- 
meanor and  subject  to  a  fine  of  not  less  than  five  hundred 
dollars,  and  each  month  of  such  failure  shall  constitute  a  sepa- 
rate offense  and  subject  such  persons  to  additional  penalties 
therefor. 

Section  4.  That  all  rights  acquired  under  this  act  shall 
cease  and  be  determined  if  the  person,  company,  or  corpora- 
tion acquiring  such  rights  shall,  at  any  time,  fail,  after  receiv- 
ing reasonable  notice  thereof,  to  comply  with  any  of  the  pro- 
visions and  requirements  of  the  Act,  or  with  any  of  the  stipu- 
lations and  conditions  that  may  be  prescribed  as  aforesaid  by 
the  Chief  of  Engineers  and  the  Secretary  of  War,  including  the 


WATER  LAWS  OF  THE  STATE  OP  OREGON  153 

payment  into  the  Treasury  of  the  United  States  of  the  charges 
provided  for  by  section  one  of  this  Act ;  provided,  that  Congress 
may  revoke  any  rights  conferred  in  pursuance  of  this  Act 
whenever  it  is  necessary  for  public  use,  and,  in  the  event  of  any 
such  revocation  by  Congress,  the  United  States  shall  pay  the 
owners  of  any  dam  and  appurtenant  works  built  under  author- 
ity of  this  Act,  as  full  compensation,  the  reasonable  value 
thereof,  exclusive  of  the  value  of  the  authority  or  franchise 
granted,  such  reasonable  value  to  be  determined  by  mutual 
agreement  between  the  Secretary  of  War  and  the  said  owners, 
and  in  case  they  cannot  agree,  then  by  proceedings  instituted 
in  the  United  States  Circuit  Court  for  the  condemnation  of 
such  properties;  and  provided  also,  that  the  authority  granted 
under  or  in  pursuance  of  the  provisions  of  this  act  shall  termi- 
nate at  the  end  of  a  period  not  to  exceed  fifty  years  from  the 
date  of  the  original  approval  of  the  project  under  this  Act, 
unless  sooner  revoked  as  herein  provided,  or  Congress  shall 
otherwise  direct ;  provided,  however,  that  this  limitation  shall 
not  apply  to  any  corporation  or  individual  heretofore  author- 
ized by  the  United  States,  or  by  any  state,  to  construct  a  dam 
in  or  across  a  navigable  waterway,  upon  which  dam  expendi- 
tures of  money  have  heretofore  been  made  in  reliance  upon 
such  grant  or  grants. 

Section  5.  That  any  persons  who  fail  or  refuse  to  comply 
with  the  lawful  order  of  the  Secretary  of  War  and  the  Chief  of 
Engineers,  made  in  accordance  with  the  provisions  of  this 
Act,  shall  be  deemed  guilty  of  a  violation  of  this  Act,  and  any 
person  who  shall  be  guilty  of  a  violation  of  this  Act  shall  be 
deemed  guilty  of  a  misdemeanor  and  on  conviction  thereof 
shall  be  punished  by  a  fine  not  execeeding  five  thousand  dol- 
lars, and  every  month  such  persons  shall  remain  in  default  shall 
be  deemed  a  new  offense  and  subject  such  persons  to  additional 
penalties  therefor;  and  in  addition  to  the  penalties  above 
described,  the  Secretary  of  War  and  the  Chief  of  Engineers 
may,  upon  refusal  of  the  persons  owning  or  controlling  any 
such  dam  and  accessory  works  to  comply  with  any  lawful 
order  issued  by  the  Secreatry  of  War  or  Chief  of  Engineers  in 
regard  thereto,  cause  the  removal  of  such  dam  and  accessory 
works  as  an  obstruction  to  navigation  at  the  expense  of  the 
persons  owning  or  controlling  such  dam,  and  suit  for  such 
expenses  may  be  brought  in  the  name  of  the  United  States 
against  such  person  and  recovery  had  for  such  expense  in  any 
court  of  competent  jurisdiction.  Said  provision  as  to  recovery 
of  expenses  shall  not  apply  wherever  the  United  States  has 
been  previously  reimbursed  for  such  removal;  and  the 
removal  of  any  structures  erected  or  maintained  in  violation 
of  the  provisions  of  this  Act  or  the  order  or  direction  of  the 


154  WATER  LAWS  OF  THE  STATE  OF  OREGON 

Secretary  of  War  or  the  Chief  of  Engineers  made  in  pursuance 
thereof  may  be  enforced  by  injunction,  mandamus,  or  other 
summary  process,  upon  application  to  the  circuit  court  in  the 
district  in  which  such  structure  may,  in  whole  or  in  part,  exist, 
and  proper  proceedings  to  this  end  may  be  instituted  under  the 
direction  of  the  Attorney  General  of  the  United  States  at  the 
request  of  the  Chief  of  Engineers  or  the  Secretary  of  War ;  and 
in  case  of  any  litigation  arising  from  any  obstruction  or  alleged 
obstruction  to  navigation  created  by  the  construction  of  any 
dam  under  this  Act,  the  cause  or  question  arising  may  be  tried 
before  the  circuit  court  of  the  United  States  in  any  district  in 
which  any  portion  of  said  obstruction  or  dam  touches. 

Section  6.  That  whenever  Congress  shall  hereafter  by  law 
authorize  the  construction  of  any  dam  across  any  of  the  navi- 
gable waters  of  the  United  States,  and  no  time  for  the  com- 
mencement and  completion  of  such  dam  is  named  in  said  Act, 
the  authority  thereby  granted  shall  cease  and  be  null  and  void 
unless  the  actual  construction  of  the  dam  authorized  in  such 
Act  to  be  commenced  within  one  year  and  completed  within 
three  years  from  the  date  of  the  passage  of  such  Act. 

Section  7.  That  the  right  to  alter,  amend,  or  repeal  this 
Act  is  hereby  expressly  reserved  as  to  any  and  all  dams  which 
may  be  constructed  in  accordance  with  the  provisions  of  this 
Act,  and  the  United  States  shall  incur  no  liability  for  the  alter- 
ation, amendment,  or  repeal  thereof  to  the  owner  or  owners 
or  any  other  persons  interested  in  any  dam  which  shall  have 
been  constructed  in  accordance  with  its  provisions. 

Section  8.  That  the  word  "persons"  as  used  in  this  Act 
shall  be  construed  to  impart  both  the  singular  and  the  plural, 
as  the  case  demands,  and  shall  include  corporations,  compa- 
nies, and  associations.  The  word  "dam"  as  used  in  this  Act 
shall  be  construed  to  import  both  the  singular  and  the  plural,  as 
the  case  demands.  [Dam  Act  of  June  23,  1910,  c.  360,  p.  593; 
2d  Sess.,  61st  Cong. ;  amending  A.  C.  June  21,  1906,  34  Stat 
386.] 

(c)     DESERT  LAND  ACT  OF  1877. 
(Act  of  March  3,  1877,  c.  107,  19  Stat.  L.  377.) 

§  1.  Reclamation  and  Purchase  of  Desert  Lands — Use  of  Water. 

That  it  shall  be  lawful  for  any  citizen  of  the  United  States, 
or  any  person  of  requisite  age  "who  may  be  entitled  to  become 
a  citizen,  and  who  has  filed  his  declaration  to  become  such," 
and  upon  payment  of  twenty-five  cents  per  acre — to  file  a 
declaration  under  oath  with  the  register  and  the  receiver  of 
the  land  district  in  which  any  desert  land  is  situated,  that  he 
intends  to  reclaim  a  tract  of  desert  land  not  exceeding  one 
section,  by  conducting  water  upon  the  same,  within  the  period 


WATER  LAWS  OF  THE  STATE  OP  OREGON  155 


of  three  years  thereafter;  provided,  however,  that  the  right 
to  the  use  of  water  by  the  person  so  conducting  the  same,  on 
or  to  any  tract  of  desert  land  of  six  hundred  and  forty  acres 
shall  depend  upon  bona  fide  prior  application;  and  such  right 
shall  not  exceed  the  amount  of  water  actually  appropriated, 
and  necessarily  used  for  the  purpose  of  irrigation  and  reclama- 
tion; and  all  surplus  water  over  and  above  such  actual  appro- 
priation and  use,  together  with  the  water  of  all  lakes,  rivers, 
and  other  sources  of  water  supply  upon  the  public  lands  and 
not  navigable  shall  remain  and  be  held  free  for  the  appropria- 
tion and  use  of  the  public  for  irrigation,  mining  and  manufac- 
turing purposes  subject  to  existing  rights.  Said  declaration 
shall  describe  particularly  said  section  of  land,  if  surveyed, 
and  if  unsurveyed,  shall  describe  the  same  as  nearly  as  pos- 
sible without  a  survey.  At  any  time  within  the  period  of  three 
years  after  filing  said  declaration,  upon  making  satisfactory 
proof  to  the  register  and  receiver  of  the  reclamation  of  said 
tract  of  land  in  the  manner  aforesaid,  and  upon  the  payment 
to  the  receiver  of  the  additional  sum  of  one  dollar  per  acre 
for  a  tract  of  land  not  exceeding  six  hundred  and  forty  acres 
to  any  one  person,  a  patent  for  the  same  shall  be  issued  to 
him ;  provided,  that  no  person  shall  be  permitted  to  enter  more 
than  one  tract  of  land  and  not  to  exceed  six  hundred  and  forty 
acres  which  shall  be  in  compact  form.  [19  Stat.  L.  377.] 

The    foregoing    act    of    Congress    of  or  entered  after  March  3,   1877,   except 

March    3,    1877,    constituted   a   reserva-  that  the  doctrine  of  riparian  rights  was 

tion    and     dedication     of     the    riparian  not    abrogated    to    the    extent    that    the 

rights    held    at    the    time    by    the    Na-  owner    of    riparian    lands    settled    upon 

tional     Government     so     far     as     such  after  that  date  could  be  deprived  of  a 

rights    affected    the    use   for    irrigation  quantity  of  water  reasonably  essential 

and  other  purposes  enumerated  in  that  for    his    domestic    and    stock    require- 

act,    and    thereby    the    act    abrogated  ments.      Hough   v.   Porter,   51   Or.    318. 

the   common   law   rule   respecting  ripa-  See  Hedges  v.   Riddle,   127   Pac.    548. 
rian  rights  as  to  all  lands  settled  upon 

§  2.  Desert  Lands  Defined. 

That  all  lands  exclusive  of  timber  lands  and  mineral  lands 
which  will  not,  without  irrigation,  produce  some  agricultural 
crop,  shall  be  deemed  desert  lands,  within  the  meaning  of  this 
Act,  which  fact  shall  be  ascertained  by  proof  of  two  or  more 
credible  witnesses  under  oath,  whose  affidavits  shall  be  filed 
in  the  land  office  in  which  said  tract  of  land  may  be  situated. 
[19  Stat.  L.  377.] 

§  3.  States  to  Which  Applicable — Determination  of  Desert  Lands. 

That  this  Act  shall  only  apply  to  and  take  effect  in  the 
states  of  California,  Oregon  and  Nevada,  and  the  territories 
of  Washington,  Idaho,  Montana,  Utah,  Wyoming,  Arizona, 
New  Mexico,  and  Dakota,  and  the  determination  of  what  may 
be  considered  desert  land  shall  be  subject  to  the  decision  and 


156  WATER  LAWS  OP  THE  STATE  OF  OREGON 

regulation  of  the  commissioner  of  the  general   land   office. 
[19  Stat.  L.  377.] 

§  4.  Plan  of  Irrigation  to  Be  Filed — Association  of  Entrymen. 

That  at  the  time  of  filing  the  declaration  hereinbefore 
required,  the  party  shall  also  file  a  map  of  said  land,  which  shall 
exhibit  a  plan  showing  the  mode  of  contemplated  irrigation, 
and  which  plan  shall  be  sufficient  to  thoroughly  irrigate  and 
reclaim  said  land,  and  prepare  it  to  raise  ordinary  agricultural 
crops,  and  shall  also  show  the  source  of  the  water  to  be  used 
for  irrigation  and  reclamation.  Persons  entering  or  proposing 
to  enter  separate  sections,  or  fractional  parts  of  sections,  of 
desert  lands,  may  associate  together  in  the  construction  of 
canals  and  ditches  for  irrigating  and  reclaiming  all  said 
tracts,  and  may  file  a  joint  map  or  maps  showing  their  plan 
of  internal  improvements.  [26  Stat.  L.  1096.] 

§  5.  Expenditure  and  Cultivation  Eequired. 

That  no  land  shall  be  patented  to  any  person  under  this  Act 
unless  he  or  his  assignors  shall  have  expended  in  the  neces- 
sary irrigation,  reclamation,  and  cultivation  thereof,  by  means 
of  main  canals  and  branch  ditches,  and  in  permanent  improve- 
ments upon  the  land,  and  in  the  purchase  of  water  rights  for 
the  irrigation  of  the  same,  at  least  three  dollars  per  acre  of 
whole  tract  reclaimed  and  patented  in  the  manner  following: 
Within  one  year  after  making  entry  for  such  tract  of  desert 
land  as  aforesaid,  the  party  so  entering  shall  expend  not  less 
than  one  dollar  per  acre  for  the  purpose  aforesaid ;  and  he 
shall  in  like  manner  expend  the  sum  of  one  dollar  per  acre  dur- 
ing the  second  and  also  during  the  third  years  thereafter,  until 
the  full  sum  of  three  dollars  per  acre  is  so  expended.  Said 
party  shall  file  during  each  year  with  the  register  proof,  by 
the  affidavits  of  two  or  more  credible  witnesses,  that  the  full 
sum  of  one  dollar  per  acre  has  been  expended  in  such  neces- 
sary improvements  during  such  year,  and  the  manner  in  which 
expended,  and  at  the  expiration  of  the  third  year  a  map  or 
plan  showing  the  character  and  extent  of  such  improvements. 
If  any  party  who  has  made  such  application  shall  fail  during 
any  year  to  file  the  testimony  aforesaid,  the  lands  shall  revert, 
to  the  United  States  and  twenty-five  cents  advanced  pay- 
ment shall  be  forfeited  to  the  United  States,  and  the  entry 
shall  be  canceled.  Nothing  herein  contained  shall  prevent  a 
claimant  from  making  his  final  entry  and  receiving  his  patent 
at  an  earlier  date  than  hereinbefore  prescribed;  provided, 
that  he  then  makes  the  required  proof  of  reclamation  to  the 
aggregate  extent  of  three  dollars  per  acre;  provided,  thai: 
proof  be  further  required  of  the  cultivation  of  one-eighth  of 
the  land.  [26  Stat.  L.  1096.] 


WATER  LAWS  OF  THE  STATE  OP  OREGON  157 

§  6.  Existing  Claims,  How  Perfected. 

That  this  Act  shall  not  affect  any  valid  rights  heretofore 
accrued  under  said  act  of  March  3,  1877,  but  all  bona  fide 
claims  heretofore  lawfully  initiated  may  be  perfected,  upon 
due  compliance  with  the  provisions  of  said  act,  in  the  same 
manner,  upon  the  same  terms  and  conditions,  and  subject  to 
the  same  limitations,  forfeitures,  and  contests  as  if  this  Act 
had  not  been  passed;  or  said  claims,  at  the  option  of  the 
claimant,  may  be  perfected  and  patented  under  the  provisions 
of  said  act,  as  amended  by  this  Act,  so  far  as  applicable;  and 
all  acts  and  parts  of  acts  in  conflict  with  this  Act  are  hereby 
repealed.  [26  Stat.  L.  1097.] 

§  7,  Issue  of  Patents  Upon  Proof  and  Payment — Limit  of  Individual 
Holding — Additional  Proofs. 

That  at  any  time  after  filing  the  declaration,  and  within 
the  period  of  four  years  thereafter,  upon  making  satisfactory 
proof  to  the  register  and  the  receiver  of  the  reclamation  and 
cultivation  of  said  land  to  the  extent  and  cost  and  in  the  man- 
ner aforesaid,  and  substantially  in  accordance  with  the  plans 
herein  provided  for,  and  that  he  or  she  is  a  citizen  of  the 
United  States,  and  upon  payment  to  the  receiver  of  the  addi- 
tional sum  of  one  dollar  per  acre  for  said  land,  a  patent  shall 
issue  therefor  to  the  applicant  or  his  assigns;  but  no  person 
or  association  of  persons  shall  hold  by  assignment  or  other- 
wise prior  to  the  issue  of  patent,  more  than  three  hundred 
and  twenty  acres  of  such  arid  or  desert  lands,  but  this  section 
shall  not  apply  to  entries  made  or  initiated  prior  to  the 
approval  of  this  Act ;  provided,  however,  that  additional  proofs 
may  be  required  at  any  time  within  the  period  prescribed  by 
law,  and  that  the  claims  or  entries  made  under  this  or  any 
preceding  Act  shall  be  subject  to  contest,  as  provided  by  the 
law,  relating  to  homestead  cases,  for  illegal  inception,  aban- 
donment, or  failure  to  comply  with  the  requirements  of  law, 
and  upon  satisfactory  proof  thereof  shall  be  canceled  and  the 
lands  and  moneys  paid  therefor,  shall  be  forfeited  to  the 
United  Statees.  [26  Stat.  L.  1097.] 

(Act  of  August  4,  1894,  c.  208,  28  Stat.  L.  226.) 
Time  Extended  for  Final  Proof  of  Entries. 

That  in  all  cases  where  declarations  of  intention  to  enter 
desert  lands  have  been  filed,  and  the  four  years'  limit  within 
which  final  proof  may  be  made  had  not  expired  prior  to  Jan- 
uary 1,  1894,  the  time  within  which  such  proof  may  be  made 
in  each  such  case  is  hereby  extended  to  five  years  from  the 
date  of  filing  the  declaration;  and  the  requirement  that  the 
persons  filing  such  declarations  shall  expend  the  full  sum  of 


158  WATER  LAWS  OF  THE  STATE  OF  OREGON 

one  dollar  per  acre  during  each  year  toward  the  reclamation 
of  the  land  is  hereby  suspended  for  the  year  1894,  and  such 
annual  expenditure  for  that  year,  and  the  proof  thereof,  is 
hereby  dispensed  with;  provided,  that  within  the  period  of 
five  years  from  filing  the  declaration  satisfactory  proof  be 
made  to  the  register  and  receiver  of  the  reclamation  and 
cultivation  of  such  land  to  the  extent  and  cost  and  in  the 
manner  provided  by  existing  law,  jexcept  as  to  said  year  1894, 
and  upon  the  payment  to  the  receiver  of  the  additional  sum 
of  one  dollar  per  acre,  as  provided  in  existing  law,  a  patent 
shall  issue  as  therein  provided.  [28  Stat.  L.  226.] 

(d)     CAREY  ACT. 

Reclamation  of  Desert  Lands  Under  "Carey  Act"  and  Acts  Amend- 
atory Thereof. 

This  so-called  act  was  a  part  of  an  act  of  Congress  of 
August  18,  1894,  entitled,  "An  Act  making  appropriations  for 
sundry  civil  expenses  of  the  government  for  the  fiscal  year 
ending  June  30,  1895,  and  for  other  purposes,"  and  is  as 
follows : 

§  4.  Grant  to  States  Irrigating  Desert  Lands. 

That  to  aid  the  public  land  states  in  the  reclamation  of  the 
desert  lands  therein,  and  the  settlement,  cultivation,  and  sale 
thereof  in  small  tracts  to  actual  settlers,  the  Secretary  of  the 
Interior  with  the  approval  of  the  President  be  and  hereby  is, 
authorized  and  empowered,  upon  proper  application  of  the 
State  to  contract  and  agree,  from  time  to  time,  with  each  of 
the  states  in  which  there  may  be  situated  desert  lands  as 
defined  by  the  act  entitled  "An  Act  to  provide  for  the  sale  of 
desert  land  in  certain  states  and  territories,"  approved  March 
3,  1877,  and  the  act  amendatory  thereof,  approved  March  3, 
1891,  binding  the  United  States  to  donate,  grant  and  patent 
to  the  state  free  of  cost  for  survey  or  price  such  desert  lands, 
not  exceeding  one  million  acres  in  each  state,  as  the  state  may 
cause  to  be  irrigated,  reclaimed,  occupied,  and  not  less  than 
twenty  acres  of  each  160  acre  tract  cultivated  by  actual  set- 
tlers, within  ten  years  next  after  the  passage  of  this  Act,  as 
thoroughly  as  is  required  of  citizens  who  may  enter  under 
the  said  desert  land  law.  [28  Stat.  L.  422.] 

Plan  of  Irrigation  to  Be  Filed — Contracts  for  Reclaiming  and  Settle- 
ment. 

Before  the  application  of  any  state  is  allowed  or  any  con- 
tract or  agreement  is  executed  or  any  segregation  of  any  of  the 
land  from  the  public  domain  is  ordered  by  the  Secretary  of  the 
Interior,  the  state  shall  file  a  map  of  the  said  land  proposed 


WATER  LAWS  OP  THE  STATE  OF  OREGON  159 

to  be  irrigated,  which  shall  exhibit  a  plan  showing  the  mode 
of  the  contemplated  irrigation,  and  which  plan  shall  be  suffi- 
cient to  thoroughly  irrigate  and  reclaim  said  land  and  pre- 
pare it  to  raise  ordinary  agricultural  crops,  and  shall  also 
show  the  source  of  the  water  to  be  used  for  irrigation  and 
reclamation,  and  the  Secretary  of  the  Interior  may  make 
necessary  regulations  for  the  reservation  of  the  lands  applied 
for  by  the  states  to  date  from  the  date  of  the  filing  of  the 
map  and  plan  of  irrigation,  but  such  reservation  shall  be  of  no 
force  whatever  if  such  map  and  plan  of  irrigation  shall  not 
be  approved.  That  any  state  contracting  under  this  section 
is  hereby  authorized  to  make  all  necessary  contracts  to  cause 
the  said  lands  to  be  reclaimed,  and  to  induce  their  settlement 
and  cultivation  in  accordance  with  and  subject  to  the  pro- 
visions of  this  section;  but  the  state  shall  not  be  authorized 
to  lease  any  of  said  lands  or  to  use  or  dispose  of  the  same 
in  any  way  whatever,  except  to  secure  their  reclamation,  cul- 
tivation, and  settlement.  [28  Stat.  L.  422.] 

The  board  is  not  authorized  to  insert  after     the     date     of     reclamation     and 

in  fi  contract  any  provision  restraining  notice   thereof   to   the   board,   was  void, 

the  alienation  of  a  contractor's  lien  or  especially  in  view  of  Sec.  3871,  L.  O.  L., 

possessory    interest    in    the    land ;    and  revising  the  law  of  1901 — this  being  a 

hence  a  provision  in  a  contract  that  no  legislative  recognizance  that  there  was 

agreement   for   the   purchase   of   water  no  such  provision  in  the  previous  law. 

rights  and  release  of  the  lien  or  settle-  (State    v.    Des    Chutes    Land    Co.,    129 

ment    should   be   entered   into    between  Pac.  764.) 
the    contractor    and    any    settler    until 

Patents  for  Reclaimed  Lands — Limit  to  One  Person — Surplus  From 

Sale. 

As  fast  as  any  state  may  furnish  satisfactory  proof  accord- 
ing to  such  rules  and  regulations  as  may  be  prescribed  by  the 
Secretary  of  the  Interior,  that  any  of  said  lands  are  irrigated, 
reclaimed,  and  occupied  by  actual  settlers,  patents  shall  be 
issued  to  the  state  or  its  assigns  for  said  lands  so  reclaimed 
and  settled ;  provided,  that  said  states  shall  not  sell  or  dispose 
of  more  than  160  acres  of  said  lands  to  any  one  person,  and 
any  surplus  money  derived  by  any  state  from  the  sale  of 
said  lands  in  excess  of  the  cost  of  their  reclamation,  shall  be 
held  as  a  trust  fund  for  and  be  applied  to  the  reclamation  of 
other  desert  lands  in  such  state.  [28  Stat.  L.  422.] 

(Act  February  19,  1909,  c.  160,  Stat.  L.  v.  35,  p.  639.) 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 

United  States  of  America  in  Congress  Assembled. 
That  any  person  who  is  a  qualified  entryman  under  the 
homestead  laws  of  the  United  States  may  enter,  by  legal  sub- 
divisions, under  the  provisions  of  this  Act,  in  the  states  of 
Colorado,  Montana,  Nevada,  Oregon,  Utah,  Washington,  and 
Wyoming,  and  the  territories  of  Arizona  and  New  Mexico, 
three  hundred  and  twenty  acres,  or  less,  of  nonmineral,  non- 


160  WATER  LAWS  OF  THE  STATE  OP  OREGON 

irrigable,  unsurveyed  and  unappropriated  surveyed  public 
lands  which  do  not  contain  merchantable  timber,  located  in 
a  reasonably  compact  body,  and  not  over  one  and  one-half 
miles  in  extreme  length;  provided,  that  no  lands  shall  be  sub- 
ject to  entry  under  the  provisions  of  this  Act  until  such  lands 
shall  have  been  designated  by  the  Secreatry  of  the  Interior 
as  not  being,  in  his  opinion,  susceptible  of  successful  irriga- 
tion at  a  reasonable  cost  from  a-ny  known  source  of  water 
supply. 

That  nothing  herein  contained  shall  be  held  to  affect  the 
right  of  qualified  entrymen  to  make  homestead  entry  in  the 
states  named  in  section  one  of  this  Act  under  the  provisions  of 
Section  2289  of  the  revised  statutes,  but  no  person  who  has 
made  entry  under  this  Act  shall  be  entitled  to  make  homestead 
entry  under  the  provisions  of  said  section,  and  no  entry  made 
under  this  Act  shall  be  commuted. 

(Amendments  to  Carey  Act,  Act  of  June  11,  1896.) 
That  under  any  law  heretofore  or  hereafter  enacted  by  any 
state  providing  for  the  reclamation  of  arid  lands,  in  pursu- 
ance and  acceptance  of  the  terms  of  the  grant  made  in  sec- 
tion 4  of  an  act  entitled,  "An  Act  making  appropriations  for 
the  sundry  civil  expenses  of  the  government  for  the  fiscal  year 
ending  June  30,  1895"  approved  August  18,  1894,  a  lien  or 
liens  is  hereby  authorized  to  be  created  by  the  state  to  which 
such  lands  are  granted  and  by  no  other  authority  whatever, 
and  when  created  shall  be  valid  on  and  against  the  separate 
legal  subdivisions  of  land  reclaimed,  for  the  actual  cost  and 
necessary  expenses  of  reclamation  and  reasonable  interest 
thereon  from  the  date  of  reclamation  until  disposed  of  to 
actual  settlers ;  and  when  an  ample  supply  of  water  is  actually 
furnished  in  a  substantial  ditch  or  canal,  or  by  artesian  wells 
or  reservoirs,  to  reclaim  a  particular  tract  or  tracts  of  such 
lands,  then  patents  shall  issue  for  the  same  to  such  state  with- 
out regard  to  settlement  or  cultivation;  provided,  that  in  no 
event,  in  no  contingency,  and  under  no  circumstances  shall  the 
United  States  be  in  any  manner  directly  or  indirectly  liable 
for  any  amount  of  any  such  lien  or  liability,  in  whole  or  in 
part.  [29  Stat.  L.  413,  414.] 

(Act  of  March  3,  1901.) 

Section  3.  That  Section  4  of  the  act  of  August  18,  1894, 
entitled,  "An  Act  making  appropriations  for  sundry  civil 
expenses  of  the  government  for  the  fiscal  year  ending  June  30, 
1895,  and  for  other  purposes,"  is  hereby  amended  so  that 
the  ten  years'  period  within  which  any  state  shall  cause  the 
lands  applied  for  under  said  act  to  be  irrigated  and  reclaimed, 
as  provided  in  said  section  as  amended  by  act  of  June  11, 


WATER  LAWS  OF  THE  STATE  OP  OREGON  161 

1896,  shall  begin  to  run  from  the  date  of  approval  by  the 
Secretary  of  the  Interior  of  the  state's  application  for  the 
segregation  of  such  lands ;  and  if  the  state  fails  within  said  ten 
years  to  cause  the  whole  or  any  part  of  the  lands  so  segregated 
to  be  so  irrigated  and  reclaimed,  the  Secretary  of  the  Interior 
may,  in  his  discretion,  continue  said  segregation  for  a  period 
of  not  exceeding  five  years,  or  may,  in  his  discretion,  restore 
such  lands  to  the  public  domain.  [31  Stat.  L.  1133-1188.] 

(Act  of  March  15,  1910.) 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  Assembled. 

That  to  aid  in  carrying  out  the  purposes  of  section  4,  of 
the  act  of  August  18,  1894,  entitled,  "An  Act  making  appro- 
priations for  sundry  civil  expenses  of  the  government  for 
the  fiscal  year  ending  1895,  and  for  other  purposes,"  it  shall 
be  lawful  for  the  Secretary  of  the  Interior,  upon  application 
by  the  proper  officer  of  any  state  or  territory  to  which  said 
section  applies,  to  withdraw  temporarily  from  settlement  or 
entry  areas  embracing  lands  for  which  the  state  or  territory 
proposes  to  make  application  under  said  section,  pending  the 
investigation  and  survey  preliminary  to  the  filing  of  the  maps 
and  plats  and  application  for  segregation  by  the  state  or  ter- 
ritory ;  provided,  that  if  the  state  or  territory  shall  not  present 
its  application  for  segregation  and  maps  and  plats  within  one 
year  after  such  temporary  withdrawal  the  lands  so  withdrawn 
shall  be  restored  to  entry  as  though  such,  withdrawal  had  not 
been  made. 

(e)     STATE  DESERT  LAND  LAWS. 
§  3860,  Accepting  Conditions  of  "Carey  Act." 

The  State  of  Oregon  hereby  acceots  the  conditions  of 
section  4  of  an  act  of  Congress  entitled,  "An  Act  making 
appropriations  for  sundry  civil  expenses  of  the  government 
for  the  fiscal  year  ending  June  30,  1895,  and  for  other  pur- 
poses," approved  August  18,  1894,  and  amendments  thereto, 
together  with  all  grants  of  land  to  the  State  under  the  pro- 
visions cf  the  aforesaid  act. 

§  3861.  Desert  Land  Board. 

The  selection,  management  and  disposal  of  said  land  shall 
be  vested  in  the  Desert  Land  Board,  which  board  is  hereby 
created,  consisting  of  the  Governor,  Secretary  of  State,  State 
Treasurer,  Attorney  General  and  State  Engineer  of  the  State 
of  Oregon.  Said  Desert  Land  Board  is  hereinafter  designated 
as  "the  Board."  The  Board  is  hereby  authorized  to  use  a  com- 


162  WATER  LAWS  OP  THE  STATE  OF  OREGON 

mon  seal  to  be  procured  by  the  Secretary  of  State,  to  employ 
necessary  assistance,  purchase  material  and  supplies,  and  shall 
have  charge  ard  control  of  all  reclamation  work  heretofore 
undertaken,  contracted  for  or  initiated  by  the  State  Land 
Board,  and  of  the  reclamation  companies  oDerating  there- 
under, prior  to  the  passage  of  this  Act,  and  the  State  Land 
Board  shall  transfer  all  records,  documents,  maps,  or  other 
papers  relating  to  such  reclamation  work  to  the  office  of  the 
Desert  Land  Board.  SaM  Board  shall  have  an  office  in  the 
Capitol  Building  and  its  various  members  shall  serve  without 
additional  compensation  to  their  respective  salaries  as  fixed 
by  law. 

§  3862.  Officers  and  Signatures  of  the  Board. 

The  Governor  shall  be  chairman  and  the  State  Engineer 
secretary  of  the  Board.  The  secretary,  or  some  authorized 
assistant,  shall  have  custody  of  all  the  records  and  files  of 
the  Board,  which  shall  be  public  records  and  open  to  inspec- 
tion by  the  public  during  office  hours ;  and  shall  receive  and 
file  all  proposals  for  the  construction  of  irrigation  works  to 
reclaim  lands  selected  under  the  provision  of  this  Act;  keep 
for  public  inspection  maps  or  plats  of  all  lands  selected ; 
receive  entries  of  settlers  on  these  lands,  have  the  custody  of 
the  seal  and  attach  the  same  to  such  instruments  as  the  Board 
may  direct,  and  do  any  and  all  work  required  by  the  Board 
in  carrying  out  the  provisions  of  this  Act. 

The  signature  of  the  Board  shall  be  subscribed  by  the  chair- 
man, attested  under*  seal  by  the  secretary. 

§  3863.  Duty  of  the  Board. 

Upon  application  made  as  hereinafter  provided,  by  any  per- 
son, association  or  corporation,  desiring  to  reclaim  any  of  the 
desert  government  lands  in  this  State,  it  shall  be  the  duty  of  the 
Board,  and  they  are  hereby  authorized  and  directed,  to  make 
proper  application  for  the  lands  which  said  applicant  under- 
takes to  reclaim,  and  make  and  enter  into  contract  or  agree- 
ment with  the  Secretary  of  the  Interior  for  the  donation 
and  patent  to  the  State,  free  of  cost  for  survey  or  price,  of 
such  desert  lands.  Said  Board  hereby  is  authorized  to  make 
and  enter  into  such  contracts  and  agreements,  and  to  create 
and  assume  such  obligations  in  relation  to  and  concerning 
said  lands,  as  may  be  necessary  to  induce  and  cause  such 
reclamation  thereof  as  is  required  by  the  contract  with  the 
Secretary  of  the  Interior  and  the  acts  of  Congress;  and  is 
authorized  and  empowered  to  create  a  lien  or  liens  which 
when  created  shall  be  valid  on  and  against  the  separate  legal 
subdivisions  of  land  reclaimed,  for  the  necessary  expenses  of 


WATER  LAWS  OF  THE  STATE  OP  OREGON  163 

reclamation,  and  reasonable  interest  thereon  from  the  date 
of  reclamation  until  said  lien  shall  have  been  satisfied;  pro- 
vided, that  in  no  event,  in  no  contingency,  and  under  no  cir- 
cumstances, shall  the  State  of  Oregon  be  in  any  manner 
directly  or  indirectly  liable  for  any  amount  of  any  such  lien 
or  liability,  in  whole  or  in  part. 

§  3864.  Application  for  Withdrawal  of  Lands. 

Any  person,  company  of  persons,  association  or  incorpo- 
rated company  desiring  to  construct  ditches,  canals,  or  other 
irrigation  work  to  reclaim  land  under  the  provisions  of  this  act 
shall,  at  its  own  expense,  file  with  the  Board  an  application 
for  the  selection  on  behalf  of  the  State  by  the  Board  of  the 
land  to  be  reclaimed.  Such  application  shall  conform  to  all 
requirements  of  the  federal  laws  and  rulings  thereunder,  and 
be  accompanied  by  the  necessary  land  office  fees  and  such 
additional  data  as  may  be  prescribed  by  the  Board,  including 
a  preliminary  estimate  of  costs  and  the  amount  of  lien  asked 
for.  If  the  application  is  made  in  proper  form,  and  it  is  made 
to  appear  that  the  proposed  plan  is  feasible,  that  the  applicant 
is  financially  able  to  complete  the  work,  and  that  its  completion 
will  be  to  the  best  interests  of  the  State,  then  it  shall  be  the 
duty  of  the  Board,  at  the  expense  and  cost  of  the  applicant,  to 
make  proper  application  for  the  selection  and  withdrawal  of 
the  lands  included  in  such  application.  The  Board  is  hereby 
authorized  to  do  any  and  all  things  necessary  to  secure  the 
withdrawal  of  lands  on  its  own  behalf  by  the  Secretary  of  the 
Interior,  and  to  let  a  contract  to  the  lowest  responsible  bidder 
for  the  reclamation  and  colonization  of  the  same  when  with- 
drawn. 

§  3865.  Deposit  to  Accompany  Application. 

A  deposit  shall  accompany  each  application  in  a  sum  not 
less  than  ten  cents  per  acre  up  to  and  including  one 
thousand  acres  and  two  cents  per  acre  for  each  acre  over  such 
amount  which  sum  shall  be  deposited  with  the  Board  and 
held  in  trust  as  a  guarantee  of  good  faith  on  the  part  of  the 
applicant,  to  whom  it  shall  be  returned  at  the  time  of  the 
execution  of  a  contract  between  the  State  and  said  applicant, 
but  in  case  the  person,  association  or  corporation  making 
the  application  shall,  upon  segregation  by  the  Secretary  of  the 
Interior  of  any  or  all  of  the  lands  mentioned  therein,  refuse 
to  enter  into  a  contract  with  the  State,  such  deposit  shall  be 
forfeited  to  the  State  and  credited  to  the  reclamation  fund 
hereinafter  created. 


164  WATER  LAWS  OF  THE  STATE  OF  OREGON 

§  3866.  Contract  and  Lien  for  Reclamation. 

Upon  the  withdrawal  of  the  land  by  the  Department  of  the 
Interior,  it  shall  be  the  duty  of  the  Board  to  enter  a  contract 
for  the  reclamation  of  such  land  with  the  party  submitting 
the  application,  which  contract  shall  contain  plans  and  specifi- 
cations of  the  proposed  irrigation  works;  provided,  that  no 
contract  shall  be  executed  by  the  Board  until  after  an  examina- 
tion and  report  in  writing  by  the  State  Engineer  concerning 
the  feasibility  of  the  proposed  plan  of  reclamation,  sufficiency 
and  availability  of  the  water  supply,  and  reasonableness  of  the 
estimate  of  cost  and  the  lien  requested.  Such  contract  shall 
provide  for  the  sale  of  water  rights  to  settlers  on  said  land 
in  satisfaction  of  the  reclamation  lien  allowed.  This  contract 
shall  not  be  entered  into  on  the  part  of  the  State  until  the 
withdrawal  of  the  lands  by  the  Department  of  the  Interior 
and  the  filing  of  a  satisfactory  bond  on  the  part  of  the  proposed 
contractor,  which  bond  shall  be  in  a  penal  sum  not  less  than 
two  per  cent  of  the  lien  to  be  allowed,  and  shall  be  conditioned 
for  the  faithful  performance  of  the  provisions  of  the  contract 
with  the  State.  The  Board  may,  however,  require  the  con- 
tractor to  make  a  deposit  at  the  time  of  application  for  entry 
of  land  by  settlers  to  insure  the  transfer  of  the  sysem  in  good 
condition  and  repair  to  the  purchasers  of  water  rights  as 
herein  provided,  which  deposit  shall  be  returned  by  the  Board 
at  the  time  of  such  transfer. 

§  3867.  Transfer  of  Control  of  Irrigation  System. 

For  such  time  as  specified  in  the  contract,  and  not  to  exceed 
ten  years  from  the  date  thereof,  the  control  and  management 
of  the  reclamation  works  shall  be  vested  in  the  person,  asso- 
ciation, or  corporation  having  contract  with  the  State.  At  the 
expiration  of  such  time  the  clear  and  unincumbered  title  to 
the  reclamation  works  and  all  franchises  thereunto  belonging, 
also  the  control  and  management  thereof,  shall  pass  to  the 
purchasers  of  water  rights  from  the  reclamation  works  in  the 
manner  to  be  prescribed  in  the  contract,  the  contractor  retain- 
ing an  interest  in  such  works  proportional  to  the  amount 
of  water  right  unsold. 

§  3868.  Contract,  Time,  Forfeiture. 

No  contract  shall  be  made  by  the  Board  which  requires  a 
greater  time  than  five  years  for  the  construction  of  the  works, 
and  all  contracts  shall  state  that  the  work  shall  begin  within 
six  months  from  date  of  contract;  that  the  contractor  shall 
secure  for  the  use  and  benefit  of  the  reclamation  system  all 
necessary  water  rights,  rights-  of-way,  reservoir  sites,  or  other 
property  necessary  for  its  construction  and  operation ;  that 


WATER  LAWS  OF  THE  STATE  OF  OREGON  165 


construction  shall  be  prosecuted  diligently  and  continuously 
to  completion;  that  a  cessation  of  work  under  the  contract 
with  the  State  for  a  period  of  six  months,  without  the  sanction 
of  the  Board,  will  forfeit  to  the  State  all  rights  under  said 
contract.  The  Board  shall  have  power  to  extend  the  time  in 
which  to  begin  the  construction  of  works,  or  for  the  comple- 
tion of  work,  on  account  of  delay  caused  by  physical  or  engin- 
eering difficulties  beyond  the  power  of  the  contractor  to 
control. 

§  3869.  Contract  Forfeited  to  State. 

Upon  the  failure  of  any  parties,  having  contracts  with  the 
State  for  the  construction  of  irrigation  works,  to  begin  the 
same  within  the  time  specified  by  the  contract,  or  to  complete 
the  same  within  the  time  or  in  accordance  with  specifications 
of  the  contract  with  the  State,  to  the  satisfaction  of  the  Board, 
it  shall  be  the  duty  of  the  secreary  to  give  such  parties  writ- 
ten notice  of  such  failures ;  and  if  after  a  period  of  sixty  days 
from  the  sending  of  such  notice  they  shall  have  failed  to  pro- 
ceed with  the  work  or  to  conform  to  the  specifications  of  their 
contract  with  the  State,  or  secure  an  extension  of  time  as 
herein  provided,  the  contract  of  such  parties  and  all  works  con- 
structed thereunder  shall  be  at  once  and  thereby  forfeited  to 
the  State.  In  case  of  any  forfeiture,  cancellation,  or  relinquish- 
ment  of  any  contract  to  the  State,  it  shall  be  the  duty  of  the 
Board  so  to  declare  and  to  give  notice  once  each  week,  for  a 
period  of  four  weeks,  in  some  newspaper  of  general  circula- 
tion in  the  county  in  which  the  work  is  situated,  and  in  one 
newspaper  at  the  State  capital  in  like  manner  and  for  a  like 
period,  of  the  forfeiture,  cancellation,  or  relinquishment  of 
said  contract,  and  that  upon  a  fixed  day  proposals  will  be 
received  at  the  office  of  the  Board  in  the  Capitol  Building  for 
the  purchase  of  the  incompleted  works  and  for  the  completion 
of  the  irrigation  works  in  accordance  with  such  plans  and 
specifications  and  such  other  conditions  as  may  be  prescribed 
by  the  Board,  the  time  for  receiving  said  bids  to  be  at  least 
sixty  days  subsequent  to  the  issuing  of  the  last  notice  of 
forfeiture.  The  money  received  by  the  Board  from  the  sale 
of  the  partially  completed  works  under  the  provision  of  this 
Act  shall  first  be  applied  to  the  expenses  incurred  by  the  State 
in  their  forfeiture  and  disposal,  and  the  surplus,  if  any  exists, 
shall  be  paid  to  the  original  contractors  with  the  State. 

§  3870.  State  Not  Responsible  for  Failure. 

Nothing  in  this  act  shall  be  construed  as  authorizing  the 
Board  to  obligate  the  State  to  pay  for  any  work  constructed 
under  any  contract,  or  to  hold  the  State  in  any  way  responsible 

Sig.   12. 


166  WATER  LAWS  OF  THE  STATE  OF  OREGON 

to  settlers  for  the  failure  of  contractors  to  complete  the  work 
according  to  the  terms  of  their  contracts  with  the  State. 

§  3871.  Land  Open  for  Entry. 

No  land  shall  be  open  to  entry  and  no  water  rights  shall  be 
sold  by  the  parties  under  contract  with  the  Board  until  the 
construction  of  the  works  is  sufficiently  advanced  to  insure 
a  water  supply,  and  the  entry  of  ah  order  by  the  Board  open- 
ing such  land  or  any  portion  thereof  to  entry  and  sale.  All 
applications  to  purchase  lands,  or  for  release  of  lien  for  con- 
struction of  the  reclamation  works,  shall  be  upon  the  forms 
provided  by  the  Board.  The  "date  of  reclamation,"  for  the 
purpose  of  this  Act,  shall  be  the  date  shown  by  the  proof  fur- 
nished the  Secretary  of  the  Interior  by  the  Board  at  which 
water  was  furnished  available  for  the  reclamation  of  each 
tract  in  the  list  of  lands. 

See  note  under  28  Stat.  L.  422. 

§  3872.  Qualifications  of  Entryman,  Payment. 

Any  citizen  of  the  United  States,  or  any  person  having 
declared  his  intention  to  become  such,  over  the  age  of  twenty- 
one  years,  may  make  application,  under  oath,  to  the  Board, 
upon  forms  prescribed  by  it,  to  enter  any  of  the  lands  reclaimed 
under  the  provisions  of  this  act,  in  an  amount  not  to  exceed 
one  hundred  and  sixty  acres  for  any  one  person.  Each  appli- 
cation shall  be  accompanied  by  a  contract,  made  and  entered 
into  by  the  applicant  with  the  person,  association,  or  corpora- 
tions which  has  undertaken  the  reclamation  of  the  tract  in 
question,  which  contract  shall  show  that  the  applicant  has  made 
proper  arrangement  for  the  purchase  of  the  necessary  water 
rights,  and  the  release  of  the  construction  lien.  Each  applica- 
tion to  the  Board  shall  in  addition  be  accompanied  by  a  pay- 
ment of  not  less  than  one  dollar  ($1.00)  per  acre  for  each 
acre  included  in  the  application,  which  payment  shall  be  made 
by  the  contractor  out  of  the  first  payment  by  the  applicant,  and 
shall  be  deposited  by  the  Board  with  the  State  Treasurer,  who 
shall  credit  the  same  to  the  "reclamation  fund"  herein  created. 
If  the  application  is  not  approved,  the  one  dollar  payment  shall 
be  returned  to  the  contractor. 

§  3873.  Deed. 

Upon  filing  with  the  Board  a  satisfactory  release  of  the  con- 
struction lien  apportioned  by  the  Board  against  the  land  in 
any  application,  accompanied  by  satisfactory  proof  of  reclam- 
ation, cultivation  and  settlement,  as  required  by  the  rules  of 
the  Board,  it  shall  be  the  duty  of  the  Board  to  deed  to  the 
applicant,  or  the  assignee  of  the  applicant,  the  land  described 
in  such  application  All  deeds  authorized  by  the  Board  to  be 


WATER  LAWS  OP  THE  STATE  OF  OREGON  167 

executed  under  the  provisions  of  this  Act  shall  be  executed 
by  the  chairman  of  the  Board  and  attested  under  seal  by  the 
secretary;  such  deeds  shall  be  in  form  a  quit-claim  and  shall 
operate  to  convey  only  such  title  as  the  State  may  have  in 
the  land  conveyed,  which  deeds,  without  acknowledgement,  or 
copies  thereof  duly  certified  and  attested  under  seal  by  the 
secretary  of  said  Board  certified  from  the  official  copy  in  his 
keeping,  shall  be  admitted  to  record,  and  the  Board  shall 
preserve,  in  a  suitable  book,  a  true  copy  of  such  deeds,  with 
an  alphabetical  index  of  the  names  of  grantees,  and  such  copies 
or  certified  copies  thereof  certified  and  attested  as  aforesaid 
shall  be  primary  evidence  of  such  conveyances. 

§  3874.  Reclamation  Fund,  How  Expended. 

All  moneys  received  by  the  Board,  except  as  otherwise  pro- 
vided herein,  shall  be  deposited  with  the  State  Treasurer  and 
by  him  placed  to  the  credit  of  a  special  fund  to  be  known  as 
the  reclamation  fund,  which  is  hereby  created.  The 
"reclamation  fund"  shall  constitute  a  trust  fund  in  the  hands 
of  the  State  Treasurer  to  be  used  only  for  the  payment  of 
expenditures  authorized  by  the  Board  in  carrying  out  the  pro- 
visions of  this  Act  and  in  securing  the  reclamation  of  other 
lands,  and  shall  constitute  a  continuing  appropriation  for  that 
purpose.  Payments  from  the  reclamation  fund  for  material 
or  supplies  furnished  or  for  services  rendered,  or  expenses 
incurred,  under  the  provisions  of  this  act,  shall  be  paid  upon 
vouchers  signed  by  the  secretary  after  authorization  of  the 
Board  at  the  time  and  in  the  same  manner  as  provided  for 
the  payment  of  salaries  and  expenses  of  State  officers. 

§  3875.  Rules  of  the  Board. 

The  Board  shall  provide  suitable  rules  for  the  filing  of 
applications  for  constructing  irrigation  works,  prescribing  the 
nature  of  final  surveys  and  the  gathering  of  engineering  data 
upon  which  the  contract  with  the  State  is  to  be  based,  the  man- 
ner in  which  the  plans  and  specifications  shall  be  submitted, 
and  for  the  entry  of  and  payment  for  the  land  and  water  rights 
by  settlers  and  for  the  settlement  or  forfeiting  of  entry  by 
settlers,  and  such  other  rules  and  regulations  as  are  necessary 
to  carry  out  the  provisions  of  this  act. 

§  3876.  Report  of  Board. 

The  Board  shall  issue,  on  or  before  September  30th,  of  the 
year  preceding  the  regular  session  of  the  legislature,  a  full 
report  of  its  work  under  the  provisions  of  this  act,  including 
a  statement  of  expenditures  and  conditions  of  all  funds,  and 
such  recommendations  for  legislation  as  are  deemed  advisable. 


168  WATER  LAWS  OP  THE  STATE  OF  OREGON 

§  3877.  Appropriation. 

There  is  hereby  appropriated,  out  of  any  moneys  in  the 
general  fund  of  the  State  Treasury  not  otherwise  appropriated, 
the  sum  of  four  thousand  dollars,  or  so  much  thereof  as  may 
be  necessary  for  the  payment  of  the  expenses  incurred  by  the 
Desert  Land  Board  in  carrying  out  the  provisions  of  this  Act, 
for  the  period  of  two  years  from  the  date  of  approval  hereof. 
All  payments  for  expenses  incurred  by  the  Board  shall  be  paid 
at  the  same  time  and  in  the  same  manner  as  for  State  officers, 
and  shall  be  paid  first  from  any  moneys  which  may  be  avail- 
able in  the  reclamation  fund  herein  created. 

(/)     COLUMBIA  SOUTHERN  PROJECT. 
§  1.  Construction  of  Columbia  Southern  Irrigation  Project. 

The  Desert  Land  Board  is  hereby  authorized  and  directed, 
on  behalf  of  the  State  of  Oregon,  to  complete  so  far  as  can 
be  done  with  the  appropriation  made  by  this  Act,  the  recla- 
mation of  lands  included  in  Oregon  Desert  Land  Selection 
List  No.  13,  and  private  lands  included  in  the  project  com- 
monly known  as  the  Columbia  Southern  Irrigation  Project,  in 
Crook  County,  Oregon.  Said  board  is  authorized  and  directed 
to  make  all  necessary  arrangements  to  perfect  the  State's  title 
to  said  project,  and  to  execute  all  contracts  and  agreements 
and  make  all  arrangements  necessary  for  the  proper  construc- 
tion and  completion  of  the  irrigation  works  to  reclaim  the 
lands  in  said  project. 

§  2.  Project  Engineer. 

As  soon  as  practicable  after  this  act  goes  into  effect,  the 
said  Board  shall  appoint,  at  a  salary  to  be  fixed  by  the  Board, 
a  project  engineer,  who  shall  serve  at  the  pleasure  of  the  Board 
and  shall  have  immediate  charge  and  supervision  over  the  con- 
struction and  operation  of  the  reclamation  works  on  said  pro- 
ject. Said  project  engineer  shall  immediately  prepare  com- 
plete plans,  specifications  and  estimates  of  cost,  all  of  which 
shall  be  submitted  to  and  approved  by  the  Board  before  con- 
struction work  is  commenced.  After  said  plans,  specifications 
and  estimates  have  been  approved  no  material  changes  shall  be 
made  therein  without  the  consent  of  the  Board. 

§  3.  Lien. 

The  said  Board  shall,  as  soon  as  possible,  prepare  a  list 
fixing  the  price  to  be  paid  for  water  rights  for  each  smallest 
legal  subdivision  or  farm  unit  of  the  State  or  Carey  Act  land  in 
said  project,  and  a  certified  copy  of  said  list  shall  be  filed  in 
the  records  of  Crook  County  and  from  and  after  the  date  of 
reclamation  of  any  tract  designated  in  said  list,  a  valid  lien  in 


WATER  LAWS  OF  THE  STATE  OF  OREGON  169 

favor  of  the  State  of  Oregon,  shall  exist  against  each  tract  in 
said  list  for  the  amount  designated  therein  until  the  same 
shall  have  been  paid.  Said  Board  shall  also  designate  the  price 
to  be  paid  for  the  sale  of  water  rights  to  each  smallest  legal 
subdivision  or  farm  unit  of  private  lands  within  said  project, 
and  shall  make  all  necessary  contracts  for  the  sale  and  deliv- 
ery of  water  to  said  private  lands.  The  total  lien  on  State 
and  Carey  Act  lands  and  the  total  amount  to  be  realized  from 
private  lands  shall  together  be  so  fixed  as  to  insure  the  return 
to  the  State  of  Oregon  of  all  money  expended  by  the  State  in 
the  reclamation  of  the  lands  in  said  project,  and  in  addition 
thereto  not  less  than  $5.00  per  acre  for  the  reclamation  fund. 
In  fixing  said  lien  the  Board  shall  take  into  account  the  con- 
dition of  the  water  right  for  each  smallest  legal  subdivision, 
and  no  additional  lien  shall  be  placed  upon  land  which  now 
has  a  complete  vested  water  right.  Any  person  who  holds  a 
contract  with  the  Columbia  Southern  Irrigation  Company,  or 
its  successors  in  interest,  for  any  tract  in  the  project  may 
execute  a  new  contract  with  the  State,  for  the  reclamation, 
under  the  provisions  of  this  act,  of  the  land  described  in  his 
original  contract  with  said  company  receiving  credit  thereon 
for  all  money  paid  to  said  company  under  said  original  con- 
tract; or  may  surrender  his  contract  and  receive,  in  cash,  the 
full  amount  of  money  paid  to  said  company  on  such  con- 
tract, but  no  such  refund  payments  shall  be  made  by  the  board 
prior  to  December  1,  1914. 

§  4.  Contracts  With  Purchasers  of  Water  Rights. 

Said  Board  is  authorized  and  directed  to  make  all  necessary 
arrangements  to  secure  the  settlement,  cultivation  and  reclam- 
ation of  said  Carey  Act  lands;  to  accept  applications  for  the 
entry  of  said  lands;  to  make  contracts  for  the  purchase  of 
water  rights  and  release  of  lien  for  said  lands;  to  make  rules 
for  their  cultivation  and  settlement;  and  to  prescribe  the  forms 
to  be  used  for  such  purposes.  Each  contract  with  purchasers 
shall  provide  for  the  payment  of  the  full  amount  of  lien 
assessed  against  the  tract  covered  by  said  contract,  within  a 
period  of  not  to  exceed  ten  years,  with  interest  on  deferred 
payments  at  six  per  cent  per  annum,  #nd  shall  also  provide  for 
the  payment  of  an  annual  maintenance  fee,  to  be  fixed  by  the 
Board.  Contracts  for  the  sale  of  water  rights  to  private  lands 
within  the  project  shall  be  upon  the  same  terms  and  conditions 
as  for  Carey  Act  lands,  and  the  Board  shall,  in  addition, 
require  the  purchaser  to  give  a  first  mortgage  on  such  private 
lands,  to  the  State,  as  security  for  the  payments  due  under 
the  contract.  Such  contracts  with  purchasers,  both  on  Carey 
Act  and  private  lands,  shall  provide  for  the  sale  of  a  propor- 


170  WATER  LAWS  OP  THE  STATE  OP  OREGON 

tionate  interest  in  the  reclamation  system  to  each  purchaser, 
and  for  the  transfer  of  said  reclamation  to  the  purchasers 
when  the  water  rights  for  a  majority  of  the  lands  in  the 
project  have  been  fully  paid  for,  the  State  retaining  an  interest 
proportionate  to  the  unpaid  balance  on  contracts. 

§  5.  Forfeiture  of  Purchasers'  Contracts. 

Upon  the  failure  of  any  purchaser  having  a  contract  with 
the  Board  to  make  payments  of  principal  and  interest  accord- 
ing to  the  terms  of  such  contract,  it  shall  be  the  duty  of  the 
Board  to  notify  such  purchaser  by  registered  mail  of  his 
default,  and  if  such  default  shall  continue  for  a  period  of  six 
months  after  the  sending  of  such  notice,  said  Board  is  author- 
ized to  cancel  said  contract  and  all  payments  made  thereunder 
shall  be  forfeited  to  the  State  and  placed  in  the  reclamation 
fund ;  and  the  Board  is  authorized  to  reopen  the  lands  covered 
by  said  cancelled  contract  for  entry  and  to  re-sell  water  rights 
to  said  land  to  some  other  purchaser.  Nothing  in  this  section, 
however,  shall  be  construed  so  as  to  prevent  the  Board  from 
extending  the  time  to  make  any  payment  due  under  any  con- 
tract with  a  purchaser,  when  in  its  judgment,  such  purchaser 
is  entitled  to  such  extension  of  time. 

§  6.  Rules  and  Regulations. 

The  said  Board  is  hereby  authorized  and  directed  to  make 
all  necessary  rules  and  regulations  for  properly  carrying  out 
the  provisions  of  this  act. 

§  7.  Receipts  From  Project. 

All  money  received  as  maintenance  fee  shall  be  applied  to 
the  cost  of  maintaining  said  project.  All  money  received  for 
the  purchase  of  land  or  water  rights  in  said  project  shall  be 
deposited  in  the  general  fund  of  the  State  treasury  until  all 
expenses  incurred  by  the  State  in  connection  with  said  project, 
including  six  per  cent  interest  on  all  moneys  advanced  from 
the  time  of  advancing  the  same  shall  have  been  repaid,  after 
which  time  all  money,  except  maintenance,  received  from  the 
project  shall  be  deposited  in  the  reclamation  fund. 

§  8.  Appropriation. 

For  the  purpose  of  carrying  out  the  provisions  of  this  act 
there  is  hereby  appropriated  out  of  any  money  in  the  general 
fund  of  the  State  treasury,  not  otherwise  appropriated,  the 
sum  of  two  hundred  thousand  dollars  ($200,000) 
for  the  year  1913,  and  the  sum  of  two  hundred 
fifty  thousand  dollars  ($250,000)  for  the  year  1914, 
or  so  much  thereof  as  may  be  necessary;  provided, 
however,  that  if  any  of  the  money  appropriated  for 


WATER  LAWS  OF  THE  STATE  OF  OREGON 


171 


1913  shall  not  be  expended  during  said  year,  it  shall  be  avail- 
able for  use  during  the  year  1914,  in  addition  to  the  amount 
appropriated  for  said  year  1914.  All  expenditures  incurred 
under  the  provisions  of  this  act  shall  be  paid  at  the  same  time 
and  in  the  same  manner  as  State  officers,  upon  vouchers 
approved  by  the  board.  [L.  1913,  c.  119.] 

(The  constitutionality  of  this  act  is  upheld  in  the  decision  rendered  in 
McMahon  v.  Olcott,  133  Pac.  836.) 

(g)  NAVIGABLE  WATERS. 

The  said  state  of  Oregon  shall  have  concurrent  jurisdic- 
tion on  the  Columbia  and  all  other  rivers  and  waters  bordering 
on  the  said  state  of  Oregon,  so  far  as  the  same  shall  form 
a  common  boundary  to  said  state,  and  any  other  state  or 
states  now  or  hereafter  to  be  formed  or  bounded  by  the  same ; 
and  said  rivers  and  waters,  and  all  the  navigable  waters  of 
said  state,  shall  be  common  highways  and  forever  free,  as 
well  as  to  the  inhabitants  of  said  state  as  to  all  other  citizens 
of  the  United  States,  without  any  tax,  duty,  impost,  or  toll 
therefor.  [Act  of  Congress  admitting  the  State  of  Oregon 
into  the  Union,  §  2.] 


Navigable  Waters  to  be  Free  High- 
ways:  We  presume  that  all  the  navi- 
gable waters  of  said  state  shall  be 
common  highways  and  forever  free  as 
well  to  the  inhabitants  of  the  state 
as  to  all  other  citizens  of  the  United 
States,  etc.,  does  not  refer  to  physical 
obstruction  of  those  waters,  but  to 
political  restrictions  which  hamper  the 
freedom  of  commerce.  Until  congress 
acts  respecting  navigable  streams  en- 


tirely within  a  state,  a  state  has 
plenary  power  to  authorize  the  con- 
struction of  a  bridge.  Willamette  Iron 
Bridge  Co.  v.  Hatch,  125  U.  S.  1, 
8  Sup.  Ct.  Rep.  811. 

Concurrent  Jurisdiction :  The  dis- 
trict court  of  the  United  States  for 
the  district  of  Oregon  also  has  con- 
current jurisdiction  over  the  Columbia 
River.  The  Annie  M.  Small,  2  Saw. 
226. 


172  WATER  LAWS  OF  THE  STATE  OF  OREGON 

OREGON  COURT  DECISIONS  RELATING  TO 
WATER  RIGHTS,  1909-1913. 


ABANDONMENT. 

Pringle  Falls  Elec.  Power  &  Water  Co.  v.  Patterson  et  al.:   132 

Pac.  526. 

Hough  v.  Porter:  51  Or.  318. 
Bormon  v,  Blackmon;  60  Or.  304. 
Hedges  v.  Riddle:     63  Or.  257. 

ADJUDICATIONS. 

Claypool  et  al.  v.  O'Neill :     133  Pac.  349. 
ADVERSE  USER. 

Cantrall  v.  Sterling  Mining  Co.:     61  Or.  516. 

Hough  v.  Porter:     51  Or.  318. 

Watts  v.  Spencer:     51  Or.  262. 

Ison  v.  Sturgill:     57  Or.  109. 

McCoy  v,  Huntley:     60  Or.  372. 

CAREY  ACT  LANDS. 

State  v,  Des  Chutes  Land  Co.:     129  Pac.  764. 
CHANGE  OF  USE. 

Williams  v.  Altnow:     51  Or.  275. 

Whited  v.  Cavin:     55  Or.  98. 

DITCHES. 

Whited  v.  Cavin:     55  Or.  98. 
Ison  ^.  Sturgill:     57  Or.  109. 
Shaw  v.  Proffitt:     57  Or.  192. 
Dalton  v.  Kelsey:     58  Or.  244. 

DAMAGES— RIGHT  OF  ACTION. 

Nevada  Ditch  Co.  v.  Pacific  Live  Stock  Co. :     127  Pac.  984. 

DOMESTIC  USE. 

Hedges  v.  Riddle :     127  Pac.  548. 
DUE  DILIGENCE. 

Whited  v.  Cavin:     55  Or.  98. 
DUTY  OF  WATER. 

Donnelly  v.  Cuhna:     61  Or.  72. 

Cantrall  v.  Sterling  Mining  Co.;     61  Or.  516. 

Little  Walla  Walla  Irr.  Co.  v.  Finis  Irr.  Co.:     62  Or.  348. 

Hough  v.  Porter:     51  Or.  318. 
IRRIGATION  COMPANIES. 

Old  Mill  Ditch  &  Irr.  Co.  v.  Breeding:     133  Pac.  89. 

Paine  v.  Milton  Irrigation  Co.:     63  Or.  576. 

IRRIGATION  DISTRICTS. 

Paine  et  al.  v.  Milton  Freewater  &  Hudson  Bay  Irr.  Co.  et  al.: 

63   Or.   576. 

Hall  v.  Hood  River  Irrigation  District:     57  Or.  69. 
Gibbons  v.  Hood  River  Irr.  Disk:     133  Pac.  772. 


WATER  LAWS  OF  THE  STATE  OF  OREGON  173 

INJUNCTIONS. 

Games  v.  Dalton:     56  Or.  596. 

Shaw  v.  Proffitt:     57  Or.  192. 

Caviness  v.  La  Grande  Irr.  Co.:     60  Or.  410. 

Pacific  Live  Stock  Co.  v.  Silvies  River  Irr.  Co.:     200  Fed.  487. 

Bowen  v.  Spaulding:     63  Or.  392. 

MUNICIPAL  USE. 

City  of  Joseph  v.  Joseph  Water  Works:     57  Or.  586. 

Batchelder  *>.  Hartung:     128  Pac.  439. 

Sherred  v.  City  of  Baker:     63  Or.  28. 

City  of  McMinnville  v.  Howenstine:     56  Or.  451. 

City  of  Portland  v.  Metzger:     58  Or.  276. 

NATURE  AND  EXTENT  OF  RIGHT— HOW  DETERMINED. 
Donnelly  «.  Cuhna:     61  Or.  72. 
Caviness  v.  La  Grande  Irr.  Co.:     60  Or.  410. 
Williams  v.  Altnow:     51  Or.  275. 
Hough  i>.  Porter:     51  Or.  318. 
Whited  ^.  Gavin:     55  Or.  98. 
Carnes  v.  Dalton:     56  Or.  596. 
Ison  v,  Sturgill:     57  Or.  109. 
Porter  v.  Pettingill:    57  Or.  247. 

POLLUTION  OF  STREAM  BY  MINING  COMPANY. 

Provolt  ^.  Barley:     61  Or.  58. 
RIGHT  OF  WAY. 

City  of  Portland  v,  Metzger:     58  Or.  276. 

Shaw  v,  Proffitt:     57  Or.  192. 

Ruhnke  v.  Aubert:     58  Or.  6. 

Tone  ^.  Tillamook  City:     58  Or.  382. 

McMinnville  v.  Howenstine:     56  Or.  451. 

RIPARIAN  OWNERSHIP. 

Bowen  v.  Spalding  et  al:     128  Pac.  37. 

Caviness  «.  La  Grande  Irr.  Co.:     60  Or.  410. 

Davis  ^.  Chamberlain:     51  Or.  304. 

Little  Walla  Walla  Irr.  Co.  v.  Finis  Irr.  Co. :     62  Or.  348. 

Hedges  v.  Riddle:     127  Pac.  548. 

Williams  v.  Altnow:     51  Or.  275. 

Hough  v.  Porter:     51  Or.  318. 

Coquille  Mill  &  Mercantile  Co.  v.  Johnson:     52  Or.  547. 

Trullinger  v.  Howe:     53  Or.  219. 

Sherred  v.  City  of  Baker:     63  Or.  28. 

WASTEFUL  USE  OF  WATER. 

Little  Walla  Walla  Irr.  Co.  v.  Finis  Irr.  Co. :     62  Or.  348. 

NOTE. — The  constitutionality  of  the  1909  water  code  is  upheld  in  the 
Silvies  River  Determination,  199  Fed.  495.  Similar  laws  in  Wyoming 
and  Nebraska  are  upheld  in  Farm  Inv.  Co.  v.  Carpenter,  9  Wyo.  110; 
61  Pac.  267;  Crawford  v.  Hathaway,  67  Neb.  325;  93  N.  W.  795,  and 
the  Oregon  case  was  decided  upon  the  same  theory  which  sustained  the 
constitutionality  of  these  other  laws. 


INDEX 

PAGE 

ABANDONMENT 

Of  appropriation  of  water  for  irrigation 56 

Of  ditches  and  mining  flumes 57 

What   constitutes    (1913    law) 50 

ANNUAL  CHARGE  FOR  WATER  POWER 

See    under    Power 36 

APPEALS 

From   Circuit  Court... 17 

From    Division    Superintendents    32 

From    State   Engineer 9 

From   State  Water  Board    (Board  of  Control) 29,37 

APPLICATION 

Approval   of   7 

Conflict  with  determined  rights , 7 

Conflict  with  municipal  supply 35 

Failure  to  file,  a  misdemeanor 6 

Fees  for    28 

For   irrigation    ... 7 

For  municipal  and  other  purposes 

For    power 7 

Indorsement 

Maps   to  accompany 7 

Nature   of   7 

Priority    10 

Refusal    of 7,  8 

Appeal    

Reservoir 10 

Return   of   7 

APPOINTMENT 

Of  Division  Superintendents  31 

Of  Secretary  of  State  Water  Board  (Board  of  Control)... 30 

Of  State  Engineer 28 

Of  Water  Master 20 

APPROPRIATIONS 

For  State  Water  Board   (Board  of  Control) 30 

For    State   Engineer 30 

1905    Law    80 

For   Surveys 

$6,900  Adjudication  Fund  81 

Co-operative   Funds 

1905—$  5,000   Fund  71 

1911— $20,000   Fund  81 

1913— $50,000   Fund  83 

Columbia  River  Power  Project  85 

Power  Fees  forming  $3,000   Fund 82 

APPROVAL 

Of  application  for  permit  to  appropriate  water 7 

ARREST 

Water  Master  has  power  of 23 


176  WATER  LAWS  OF  THE  STATE  OP  OREGON 

PAGE 
ARTESIAN  WELLS 

Contract  for  boring,  etc 143 

County  court  to   locate  sites 141,  143 

Defined    144 

District,   boundaries,   how   determined 141 

Petition   for   creation   of 141 

Election    in    District,    ballots 142 

Court  to  order 142 

General  election  laws  apply : 

Notices,   form   and   service 142 

Who    may   vote    145 

Location,  considerations  determining  143 

County  court  to  make 143 

State  Engineer  to  be  consulted 143 

Reservation  of  rights  for  public  use 144 

Sites  for,  county  court  to  locate 141 

Tax,  levied  on  same  land  but  once  same  year 145 

Unused  balance,  how  disposed  of 

When  county  court  to  levy 

Water,  regulations  for  distribution 144 

ASSESSMENTS 

See  Irrigation  Districts,  Drainage  and  Diking  Districts. 

ASSIGNMENT 

Of  permit  9 

Of  water  right  27 

ATTORNEY  GENERAL 

Advisor  to  State  Engineer 31 

Advisor  to  State  Water  Board   (Board  of  Control) 31 

To  bring  suit  for  determination  of  rights 71 

To  conduct  condemnation  proceedings,  when 44 

To  foreclose  lien  of  state  for  fees 37 

B 
BENEFICIAL   USE 

Waters  may  be  appropriated  for 5 

BOARD  OF  CONTROL 

See  State  Water  Board. 
BONDS 

See   Irrigation,   Drainage  and   Diking  Districts. 

BONDS  OF  OFFICERS 

Of  irrigation  districts  91 

Of  Secretary  of  Water  Board 30 

Of  State   Engineer  

Of  Division   Superintendents  32 

BULL  RUN  RIVER 

Exempted  from  provisions  of  law 48 

Waters,   use   of   .  35 

C 

CANALS 

See  Ditches. 

CAREY  ACT 

Amendments  to   160,  161 

Contracts  for  reclaiming  land 158 


WATER  LAWS  OP  THE  STATE  OP  OREGON  177 

PAGE 

Entry  under,  how  made,  by  whom ! 159 

Grant  of  lands   under 158 

Irrigation  districts  may  make  contracts  with 97 

Patents   for    reclaimed   lands 159 

Plan  of  irrigation  to  be  filed 158 

State  Laws  under 

Accepting  conditions  of  161 

Columbia  Southern  Project  168 

Contract  and  lien  for  reclamation 164 

Time,    forfeiture    164 

Forfeited  to  State  165 

Failure;   State  not  responsible  for 165 

Deed   166 

Desert  Land  Board  161 

Appropriation  for  work  of 168 

Application   for   withdrawal 163 

Deposit  to   accompany   application 163 

Duty  of  162 

Officers  and  signatures  of 162 

Report  of  167 

Rules  of  , 167 

Land  open  for  entry 166 

Reclamation  Fund  167 

Transfer  of  control  of  system 164 

Withdrawals   163 

Application  for  163 

Deposit  to  accompany  163 

CERTIFICATES   OF   WATER   RIGHT 

Under  adjudications  by  Board 16 

Under  permits  issued  by  State  Engineer 10 

CERTIFIED   COPIES 

To  be  furnished  by  Secretary  of  Water  Board 30 

To  be  furnished  by   State   Engineer 28,  29 

CHANGE 

In  place  of  use  of  water 27 

CIRCUIT   COURT 

Appeal    from    17 

Appeal   to    29 

Concurrent  with  Justice  Court,  when 55 

Decree  of,  to  be  transmitted  to  Board 

Procedure  upon  receipt  of  order  of  determination 16 

Exceptions  17 

Rehearing    18 

Suit  for  determination  11 

Transferred  to  State  Water  Board 11 

To  furnish  order  fixing  time  of  hearing 17 

COLUMBIA   RIVER 

Power   project  on   ,85 

What  portion  not  to  be  diverted 5 

COLUMBIA   SOUTHERN  IRRIGATION  PROJECT 

Appropriation  for  170 

Construction   of   168 

Contracts  with  purchasers  169 

Forfeiture   of 170 

Lien    .  168 


178  WATER  LAWS  OF  THE  STATE  OF  OREGON 

PAGE 

Project  Engineer 168 

Receipts  from  project  170 

Rules  and  regulations  170 

CONDEMNATION 

See  Eminent  Domain. 
COMPENSATION 

See  Pay. 
CONSTRUCTION   WORK 

Due    Diligence    33 

Time  limits  for  . 9 

CONTESTS 

Costs    of    .  14 

Evidence  of,  to  be  transmitted 15 

Hearing  of  14 

Time  within   which   made 14 

Who  may  bring  after  partial  determination 19 

D 
DAM 

See  Ditches,  Diversion  Works,  etc. 

DAMAGES 

For  what  ditch  owner  liable 55 

DATE  OF  RIGHT 

Initiated  under   1909   law 10 

DECREE  OF  CIRCUIT  COURT 

Appeals  from 17 

Copy  to  be  filed  with  State  Engineer 52 

Copy  to  be  filed  with  State  Water  Board 18 

When    entered    17 

DEPOSITIONS 

May  be  taken  in  contests 14 

DESCHUTES  RIVER 

Pollution  of,  prohibited  80 

DESERT  LANDS 

See  Carey  Act. 

See   Federal    Statutes. 

DETERMINATION  OF  WATER  RIGHTS 

Contests   14 

Evidence    transmitted    15 

Filing   statement   of 14 

Hearing    14 

In   related  adjudications  20 

Court   Procedure 

Appeals 

Decree  of  Court  17 

Copy  to  be  filed  with  Board 

Entry  in  records  of  Board 

Exceptions  may  be  filed  when 17 

Notice  to  adverse  parties 

Rehearing    

Case  may  be  remanded 17 


WATER  LAWS  OF  THE  STATE  OF  OREGON  179 

PAGE 

Duty  of  claimants  19 

Fees 13 

Inspection    , 13 

Claims  opened  for  13 

Of  claims  in  related  adjudications 19 

Intervention 19 

Petition  for  . 19 

Investigation   before    determination    11 

Measurements  of  streams  and  ditches 15 

Notice  of  proceedings,  for  publication 11 

Notice  to  claimants  11 

Notice  upon  completion  of  testimony 13 

Order    of    determination -  15 

Certified  copy  to  be  filed  with  court .. 15 

Conclusive,    when    19 

In  force  until  court  decree  received 16 

Hearing  of  in  court 16 

Stav    Bond 18 

Petition    for    . 11 

Statement  of  claimant 12 

What  to  contain   12 

To  be  under  oath  12 

Taking  testimony   12 

Dates  for  fixed 11 

To  adjourn 11 

Transfer  of  suit  from   Circuit  Court 11 

Water  right  certificate  ..  16 

DIKING   DISTRICTS 

Advertisement  for  bids  for  work 135 

Appeals  under  act,  how  taken 139 

Assessment,  payment  by  installment  135 

Bills,  how  endorsed  and  paid 138 

Bonds  to  fund  indebtedness 139 

Redemption  from  sinking  fund 141 

Sale  or  exchange,  and  record  of  140 

Sinking  fund   ....140,141 

Tax  to  pay  interest  and  sinking  fund 140 

Boundaries,   viewers   and   surveyors   to   define 134 

Cost,  apportionment  and  assessment  of  in  districts 

How  assessed  and  collected  135 

Qf  improvements,  apportioning,  how  collected 

Of  presentation  of  petition,  who  to  bear 134 

County  court  has  jurisdiction  of 133 

Damages,  claims  and  assessment  for,  payment  of 138 

Dike,  county  court  authorized  to  maintain 133 

Estimates  of  cost,  and  report  of  to  county  court 134 

Judgment,   against   whom   taxed 139 

Laws  applicable  to 

Line  of  dike,  how  changed  by  individual 139 

Location    upon    ground    134 

Maintenance   of   dikes,   and   provision 136 

May  be  organized  in  lands  already  diked 138 

Money  collected  a  special  fund 135 

Petition,  hearing  of,  and  action  upon 134 

Publication    of    , 133 

What  to  contain  

Petitioners,  number  of,  qualifications  of 

To  give  bond  for  expense  of  view  and  survey 133 

Plans  to  be  made  by  viewers : 134 


180  WATER  LAWS  OP  THE  STATE  OF  OREGON 

PAGE 

Procedure  same  as  for  establishment  of  county  roads 134 

Right  of  way  for  dike,  how  vacated 139 

Superintendent,  appointment  and  duties  136 

Compensation    137 

Removal,  for  what  137 

Taxation   for,   how   made   and   collected 135 

Railroad    line    libale   for 139 

Word    "lands"    construed    139 

Viewers,  appointment,  number  and  purpose  of 133 

State  Engineer  to  assist  133 

Warrant,  provisions  as  to   138 

Receivable  for  what  taxes  138 

DISTRIBUTION  OF  WATER 

Districts    20 

Injunctions 26 

Obstructing  works  27 

Regulation    of    ditches    and    reservoirs 26 

Costs  of,  to  be  paid  25 

Headgate,   maintenance  of   23 

Joint  owners  25 

Lien  for  work  performed  on 

Rotation 26 

Unlawful  use  27 

Wasteful    use    27 

Water    Master 

Appointment  of  

Assistants    

District  Attorney  to  act  for 21 

Duties    20 

Pay  of  21 

Power   of  arrest   23 

Shall  prevent  waste  21 

Term    of    20 

To   adjust  headgates 23,25 

To  begin  work  when 

To  regulate  ditches  and  reservoirs 26 

DISTRICT    ATTORNEY 

Advisor  to  State  Engineer  and  Water  Board 31 

To    foreclose   lien   on    ditch,    when 61 

To  act  for  water  master,  when 21 

To  serve  in  condemnation  suits 44 

DISTRICT    IMPROVEMENT   ACT 

Articles  of  Incorporation   145 

Shall  specify  what  145 

To  be  filed  where  145 

Assessment    147 

When    paid   148 

Bonds    - 148 

Interest    ; 

Issue    authorized    

Condemnation,  right  of  

Directors,  powers  and  duties  147 

Fee  for  organization   

President  and  secretary  of  

Who   is   eligible  1  |> 

Fees  for  organization 


WATER  LAWS  OF  THE  STATE  OF  OREGON  181 


PAGE 

Land,  what  may  be  included  149 

What  may  be  excluded  149 

License  fee 149 

Lien  created  by  debts  of  district  146 

Lien,  assessments  shall  constitute  148 

Meetings  of  corporation  146 

Notice  of  improvement 146 

Organization  fee 149 

Preliminary  investigation  148 

Report  on  148 

Removal  of  officers 146 

Rules,  directors  shall  make  147 

Who  may  incorporate  145 

DITCHES,  DIVERSION  WORKS,  ETC. 

Abandonment    of    50, 57 

Application   to   dig  draining  ditch 62 

Are  real  estate 56,  57 

Common  user  of  .' 

Compensation  for  tapping  ditch  64 

Condemnation.     See  Eminent  Domain. 

Damages,  for  what  owner  liable 55 

Draining  ditch,  application  to  dig 

Commissioners  to  locate  ditch 62 

To  assess  damages 62 

Benefits  considered  63 

Report  and  appeal  63 

Oath,   commissioners  may  administer   64 

Located  so  as  to  do  least  damage 62 

Embankments  must  be  maintained   55 

For  drainage,  see  drainage  districts. 

For  mining  57 

For  waste,  spring  or  seepage  water 53 

Headgates,   maintenance   of 23,  55 

Inspection   of   

Interference  with  

Injury  to  

Interference  with   headgate   

Joint  owners  of 25 

Land  not  to  be  burdened  with  more  than  one 

Lien  for  work  performed  on 25 

Obstruction   of  27 

Overflow,  seepage,  etc.,  on  roads. 

Supervisor  to  notify  owner  of 

Supervisor  must  divert  water,  owner  failing 60 

District    attorney   to    foreclose   lien 

Expense  of,  to  be  a  lien 

Owner    must   make   crossing 61 

Penalty  for  destruction  of  64 

Regulation  of  partnership  ditches  26 

Right  of  way.      See   Eminent   Domain. 

Must  be  kept  free  from  weeds  54 

Riparian   owner  may   raise   water 54 

Shortest  practical  route  must  be  selected 55 

Surveys  for,  may  enter  on  land  to  make 

Tapping  ditch,  compensation  for  64 

Trespass    on    mining    claims    

Weeds  to  be  cleared  from  

Wire  screen  required  at  inlet 65 

Sig.   13 


182  WATER  LAWS  OF  THE  STATE  OF  OREGON 


PAGE 

DIVERSION  OF  WATER 
See  Ditches. 
In  another  state  49 

DIVISION    SUPERINTENDENTS 

Appeal  from 32 

Compensation    of    32 

Duties    32 

Election   of   :. 31 

Oath  and  bond  of  32 

Qualifications   31 

Term    of    31 

See  also  Determination  of  Rights. 

DOMESTIC   USE 

Preferred  above  others  54 

DRAINAGE   DISTRICTS 

Assessments,  when  authorized,  how  made 126, 127 

Board  to  report  plan  and  estimates  of  system 126 

To  keep   accounts   129 

Bonds  to  fund  indebtedness,  insurance,  conditions  of 139 

Redemption    from    sinking   fund 141 

Sale    or    exchange,    record    of 140 

Sinking  fund   140 

Tax  to  pay  sinking  fund  and  interest 140 

By-Laws,  who  may  make,  and  concerning  what 124 

Charges,  how  collected  127 

Lien   on   land   127 

List  to  be  made  and  filed  127 

To  be  paid,  how  126 

Commissioners  to  assess  charges  and  benefits 126 

Condemnation   of  outlet,  action   for,   how  tried 126 

Right  to  125 

Conducted  under  management  of  owners,  when  129 

Contracts  open  to  inspection  

Establishment,  conditions  requisite  to  

When  land  lying  in  different  counties,  procedure 

Laying  out  and  securing  land  for,  powers  of  Board 

Penalty  for  refusing  to  keep  drain  open,  or  injury  to 129 

Petition   to    establish    

Approved  by  county  court,  effect 

To  be  recorded  124 

Securing  land  for  right  of  way  for  ditches 

Trustees,  may  acquire  land  129 

Who    are    123 

Warrants,  how  paid  or  endorsed  127 

Work  to  be  done  under  direction  of  Board 128 

Washington   County   District 

Annual   election  of   supervisor,  and   report 

Meeting,    report    of    

Appointment    of    commissioners    

Assessment  of  property  in,  how  obtained 

Bond  for  payment  of  cost  

Commissioners,  appointment  of  

Election,  of  supervisor,  notice  of 

Votes,  what  allowed  and  how  given 

Expense,  of  draining,  how  enforced 

Of  establishing,  by  whom  paid  

How    established    .  129 


WATER  LAWS  OF  THE  STATE  OF  OREGON  183 

PAGE 

Notice,  of  application   for  establishment  132 

Of  employment  of  labor  132 

Secretary,   qualifications   and   duties  131 

Report  to  be  filed  with  clerk  of  county 131 

Special  meetings  of  voters,  how  called 130 

Supervisor,    election    130 

Powers    of 131 

Qualifications  and  duties  of  131 

To  determine  expenditure,  and  limitation  upon 132 

DUTIES 

Of  division   superintendents  32 

Of  secretary  of  State  Water  Board  30 

Of  State  Engineer  51 

Of  Water   Masters   20 

In  regard  to  reservoirs  24 

E. 
ELECTION 

See  Irrigation,  Drainage  and  Diking  Districts. 
EMINENT  DOMAIN 

Board  of  "Public  Building  Commissioners  68 

Power  to   condemn   68 

Proceedings 69 

Corporations 

May    appropriate    land 42 

May  appropriate  private  property 

May  change  location  of  canal,  etc 43 

Mining  and  private  corporations  

For   public  benefit   44 

Patents  subject  to  ditch  rights  48 

Right  of  way  over  state  lands  .., 47,48,54 

Shortest  route  must  be  selected  55 

Copy  of  field  notes  to  be  filed  47 

Enlargements  of  existing  works 40 

Exercised  by  State  Engineer  and  assistants 51 

Land  may  be   appropriated   42 

Mining  corporations  may  condemn  43 

Municipalities. 

Of  adjoining   state  may   condemn   40 

Power    to    condemn    40 

To  appropriate  private  property  46 

Rights  of  way  across  state  lands 47 

State,    condemnation    by    45 

By  whom   represented 

Expense  of  proceedings  45 

Procedure    45 

Value  of  property  45 

State  lands,  right  of  way  over   47,  48,  54 

State  patents,  subject  to  rights  acquired  by  

When  and  by  whom  exercised  40 

EVIDENCE 

Transmitted  to   County  Clerk  15 

EXCEPTIONS  TO  ORDER  OF  BOARD 

When  to  be  filed 17 

Hearing    of 17 


184  WATER  LAWS  OF  THE  STATE  OF  OREGON 

PAGE 
EXTENSION  OF   TIME 

Under    permits    9 

F. 
FEDERAL   STATUTES 

Carey  Act  158 

Dam   Act  of   1910    ,. 150 

Desert  Land  Act  of  1877 154 

Navigable  waters  are  common  highways  171 

Patents  granted  subject  to  existing  rights 150 

Power    Projects. 

Charges  payable  to  United  States  152 

Controlling  works  may  be  installed  152 

On  navigable  waters   150 

Secretary  of  War  and  Chief  Engineer  to  inspect  plans....  151 

Recognition   of  existing  water   rights 150 

FEES 

Collected   by  Division   Superintendents   13 

Collected  by  Secretary  of  Water  Board 30 

Collected  by  State  Engineer  ! 28 

H. 

HEADGATE 

Inspection    of   23 

Interference   with   

Maintenance   of   

Penalty  for  interference  23 

Water  Master  shall  adjust,  when  25 

HEARING 

Of  contests  14 

Of  exceptions,  before  Circuit  Court  17 

Of  appeal  from  State  Engineer  9 

I. 

INJUNCTIONS 

Affecting  the  use  of  water  26 

INITIATION  OF  WATER  RIGHTS 

Procedure    for    5, 11 

INSPECTION 

Engineer's  authority  for  

Of  claims  in  adjudications  

Of  claims  in  related  adjudications  i  '•' 

When    required    

INTERFERENCE 

With  headgate,  penalty  -"- 

INTERSTATE    RIGHTS 

Diversion  and  use  in  another  state  !  ' 

INTERVENTION 

Petition   for   .,  19 


WATER  LAWS  OF  THE  STATE  OP  OREGON  185 


PAGE 
IRRIGATION 

Regulation  of  by  the  State 5,  34 

Under   Carey  Act.      See   Carey  Act. 
See  Desert  Land  Act. 

IRRIGATION   DISTRICTS. 

Action,   concerning  validity  of  organization  90 

Authority   to   maintain    97 

Advertising  proposals  for  work 105 

Apportionment  of  water,  among  localities  122 

Assessment   of   lands   _ 101 

Equalization   Board,  what  is  102 

Equalization   of   102 

Hearing  of  objections   _• 103 

How   made 102 

Lands  exempt  .' 102 

Levy    of    103 

List  to  be  prepared  102 

Neglect  of  officers  in  regard  to 103 

Special,  and  special  election  for 109 

Board  of  Directors,  Carey  Act,  may  make  contracts  under....  97 

Appeal    from 112 

On   dissolution 117 

Minutes   to   show   proceedings   115 

To   order  change  of  boundaries   113 

Bonds,  contract  with  U.  S.  in  lieu  of 100 

Description  and  requirements  of  97 

Election    to    authorize,   and   proceedings 98 

How  paid  101 

Interest,   how  paid   101 

What   rate   to    bear   99 

Investment  of  fund  for   redemption  of  105 

Payment   of   coupons 105 

Redemption    of    105 

Sale  of,  procedure  and  notice  100 

Boundaries,    change   of    110 

Election  for  change  112 

Notice  of  filing  of  petition  Ill 

Petition  for  change  of  110 

Procedure   for   including   lands   110,  113 

Procedure  for   excluding  lands  113, 117 

Canals  may  be  built 95 

Charges,   assessment  upon   land   101 

Claims,  when  and  how  paid  106 

Compensation  of  members  of  board  108 

Combination  with  another  district  109 

Condemnation,    right    of 95 

Construction   of   act   122 

Construction  of  works,  power  of  95 

Contests,   see   Test   Cases   118 

Contract,   letting   105 

Officers  and  Directors  not  to  be  interested  in 108 

County  Treasurer,  payment  of  funds  to,  care  of 106 

To  report  amount  of  money,  when 106 

Dams  may  be  built  95 

Debts,  power  to  create  limited  109 

Directors,    Board    of    95 

Authorization  to  take  deed,  maintain  suits 97 

Compensation  of   108 


186  WATER  LAWS  OF  THE  STATE  OF  OREGON 

PAGE 

Election,   term,  oath   and  bond  of 91 

Not  to  be  interested  in  contract  108 

Number,   and   election   of   87 

Organization,  duties,  by-laws,  etc 94 

Records   open   to   inspection   95 

Right  to  acquire  lands,  build  canals,  etc 95 

Diversion  of  water,  what  not  authorized  122 

Drainage    110 

Election,  ballots,  sealing  and  keeping  of 93 

Board    of,    how    constituted    91 

Organization  and  powers  of  92 

Canvass   of   returns,   when   and  how  made 93 

Certificate  of  votes  93 

Conduct   of   92 

Contest,  how  instituted  93 

Counting   ballots    92 

Issuing  bonds  or  contract  with  U.  S 97 

Notice  of  : 91 

Of  what  officers 91 

Original,  application  of  voters  87 

How  conducted,   canvass  of  vote  89 

Notice  of,  what  to  contain  87 

Of  Directors,  by  division,  or  at  large  87 

Who  entitled  to  vote  at 87 

Polls,  open  when  92 

Returns,  how  and  to  whom  delivered 93 

Special,  for  levying  assessments  109 

Statement  of  result  94 

Evidence,  assessment  of  Directors  as  105 

Expenditure,   from   what  fund   paid   107 

Funds,   depositing  with  county  treasurer,  liability 106 

From  what,  different  expenditures  paid  107 

Indebtedness,  power  to  create,  limited  109 

Lands. 

Addition  of,  to  district  110 

Compensation  for,  how  made  96 

Exclusion  from  irrigation  district  113 

May  be  entered  and  surveyed  96 

May  be  taken  by   96 

Title  vests  in  district  96 

What  may  be  included  in  district  87 

Levy  of  assessment  in  case  of  insufficient  bond  issue 

Limitation,   within  which  contest  may  be  brought 

Merger,   election   and   proceedings   generally 117 

Officers,  compensation  of  108 

Election,  bond,   term   of  office  91 

Neglect  of  any  matter  of  assessment  103 

Not    to   be   interested   in   contract   108 

Vacancies,  how  filled  

Order    declaring    district    organized    

Organization,   action   concerning  validity  of  

Order  declaring,  and  filing  of  90 

When    completed    

Validity  may  be  tested  118 

Petition  for  87 

Petitioners,  qualifications  and  number  

Property,   authority   to   take   conveyance   of 97 

Title  vests  in  district  

Railway,  construction  of  works  across  107 


WATER  LAWS  OF  THE  STATE  OF  OREGON  187 


PAGE 

Redemption  of  bonds  105 

Reservoirs  may  be  built  

Right  of  way,  how  obtained  - 107 

Over  state  lands,  dedicated  107 

Rules  and  regulations  of,  how  made  

Service   of    process   120 

State  Engineer  report  on  plan  97 

Taxation,  power  used  to  pay  indebtedness  to  U.  S 

Proceedings   in   accordance   with   federal   statutes 104 

Title  vests  in  district,  when  96 

Test  cases,  to  ascertain  validity  of  proceedings 

Treasurer,    oath   and  bond  91 

Report   of    106 

Vacancies  in  office,  how  filled  

Water,  apportionment  among  members  

Among  localities,  when  supply  insufficient 122 

Use  of  declared  public  95 

Right  of  state  granted  to   107 

What  lands  to  be  included  in  district 

IRRIGATION  PROJECT 

Columbia  Southern    (Tumalo  Irrigation  Project)    168 

J. 
JOINT   OWNERS 

Responsibility  25 

L. 
LIENS 

Drainage  Districts,  charges  to  constitute  127 

For  work   performed   on   ditch   

On  crops  for  water  for  irrigation  

On    mines    .'. 57 

Claimant  to  file  statement  59 

M. 
MAPS 

Prepared  by  State  Engineer  15 

To  be  filed  with  application  to  appropriate  water....  7 

MEASUREMENT  OF   STREAMS  AND  DITCHES 

By  State  Engineer  15 

MEETINGS  OF  STATE  WATER  BOARD 
(BOARD    OF   CONTROL) 

When   to   be  held   29 

Quorum     

MEMBERS   OF   STATE  WATER  BOARD 
(BOARD    OF   CONTROL) 

State  Engineer  and  Superintendent  to  be  29 

MINING 

Liens   authorized  on  mines,  when 57 

Claimant  to   file   statement   

Trespass  on  mining  claim  

Use  a  public  one   

MULTNOMAH  CREEK 

Not  to  be  diverted  ..  5, 39 


188  WATER  LAWS  OF  THE  STATE  OF  OREGON 

PAGE 

MUNICIPAL  AND  PUBLIC  CORPORATIONS 
See  Eminent  Domain. 

Contracts    ratified    1 49 

Exempted  from  provisions  of  statute  50 

Portland  water  supply 34 

Right  to  sell  water  49 

Time  limitations  for  construction  work  not  to  apply 9 

N.       - 

NORTH  UMPQUA  RIVER 

Pollution   of   prohibited   79 

NOTICE 

Of  appeal   17 

Of  contest  14 

Of  determination,  for  publication  11 

Of  determination,  to  claimants  11 

Of  hearing  before  Circuit  Court  16 

Of    improvement    146 

Of  intention  of  U.  S.  to  use  water  70 

Upon  completion  of  testimony 13 

0. 
OATH   AND   BOND 

Of  Division   Superintendents  32 

Of  Secretary  of  Water  Board  30 

Of  State  Engineer  ..  52 

OATHS 

Members  of  Board  authorized  to  administer  30 

OBSTRUCTIONS 

See   Pollution  and  Obstruction  of  Streams. 

To  works  27 

P. 
PAY 

Of  Division    Superintendents   32 

Of  Secretary  of  Water  Board  30 

Of    State    Engineer    28,81 

Of  Water  Master  ..  21 

PENALTY 

For   destruction   or   injury  to  works   64 

For  violation  of  1909  Water  Code  

For  violation  of  1905  law  54 

Justices'  Courts  to  have  jurisdiction  55 

PERMITS 

Assignment  of  9 

Time   limitations   of  , 

Reservoir    

Water  right  certificates  under  ....  -  10 

PETITION 

For  determination  of  rights   11 

For    intervention 

For  irrigation   district  87 


WATER  LAWS  OP  THE  STATE  OP  OREGON  189 

PAGE 
POLLUTION  AND   OBSTRUCTION   OF   STREAMS 

Animal  carcass,  unlawful  to  put  in  water  73 

Constitutes  misdemeanor  73 

Obstructions  in  Rogue  River  prohibited  77 

Obstructions  in  fish  streams  prohibited  78 

Placing  deleterious  matter  in  stream,  unlawful  78 

Placing  explosives,  poisons,   etc.,  in   stream  75 

Placing  sawdust,  shavings,  etc.,  in  stream 77 

Polluting  water  supply  for  domestic  use  74 

Polluting  water  supply  for  municipal  use  74 

Pollution  of   Deschutes   River  prohibited  80 

Pollution  of  North  Umpqua  River  prohibited  79 

PORTLAND,   CITY   OF 

Water  supply  protected  34 

POWER 

Annual   charge  for    (1909  law)    36 

Appeal  from  decision  of  Board  37 

How   paid    36 

Annual  license  fee  for   (1911  law)   37 

How   paid    38 

To  create  survey  fund  82 

Statement  to  accompany  fees  38 

Columbia  River  Power  Project  85 

Fees  for,  in  adjudications  '. 13 

Fees  for  filing  application  for  power  28 

Public   Use   38 

Limitation  of  franchise  10 

Term,  forfeiture   36 

Theoretical  water  horsepower  38 

PUBLIC   BUILDINGS 

Board  of  Building  Commissioners  68 

Actions  in  name  of  state  69 

Authority  to  acquire  water  '. 68 

Authority  to   acquire   rights 69 

Proceedings  to  condemn  water  69 

To  provide  water  for  state  institutions  68 

Transfers  made  directly  to  state  69 

Claims  audited  by  Secretary  of  State  69 

Water  supply,  appropriation  for  70 

PUBLIC   LANDS 

See  Carey  Act. 

Right  of  Way  over 

For  ditch  for  mining  or  power  

For    irrigating    ditches 107 

For  water  ditches  and  pipes  47 

PUBLIC  USE 

See   Municipal   and   Public   Corporations. 
See  Eminent  Domain. 

Defined    

Mining  and   power   .- 

Right  to   collect  rates  48 

PUBLICATION 

Of  notice  of  proceedings  to  determine  water  rights 11 


190  WATER  LAWS  OF  THE  STATE  OP  OREGON 

PAGE 
R. 

RATES 

Legislature  may  fix  57 

Right   to    collect    48 

RECLAMATION 
See  Carey  Act. 
See  Federal  Statutes. 

RECORDS  OF  STATE  ENGINEER 

Are  public  records  52 

Open  to  inspection  52 

REPORTS 

Biennial  report  of  State  Engineer  51 

Of  Desert  Land  Board  167 

RESERVOIRS 

Costs  of  regulating,  how  payable   25 

Headgate,   maintenance  of   23 

Procedure  under   reservoir  permit  10 

Regulation   of  partnership   reservoir   26 

Secondary    permit    required    10 

Water   Master  may  regulate  24 

RIGHT    OF   WAY 

See    Eminent   Domain. 

To  be  kept  free  from  weeds  54 

RIPARIAN  RIGHTS 

Extent   of 33 

Owner  of  may  raise  water 54 

See  note  to  Section  6594,  page  5. 

ROADS  AND  HIGHWAYS 

Ditches  crossing,  who  to  construct  61 

Expense  of  Supervisor  a  lien  61 

Expense,  when  paid  by   Supervisor  61 

District  Attorney  to  foreclose  lien  61 

Overflow,  seepage,  etc.,  on  roads  60 

Supervisor  can  divert  water   60 

ROGUE   RIVER 

Obstruction  of  prohibited 77 

ROTATION 

In   the  use  of  water   26 

S. 
STATE  OF  OREGON 

A  party  in  hearing  of  determination  17 

STATE   ENGINEER 

Appeal  from  

Appointment  and  election   of    (1909  law)    

1905   law   

Assistants,  may  employ  -s 

Compensation    of    28, 81 

Duties    of    

In  connection  with  withdrawals  by  U.  S 70 


WATER  LAWS  OF  THE  STATE  OF  OREGON  191 

PAGE 

Fees  to  be  collected  by _ 28 

Member  and  President  State  Water  Board  29 

Oath  and  bond  of  52 

Qualifications    51 

Records  of  52 

Report  of  51 

Surveys   by.      (See    surveys). 

Term  of  office  28 

To  measure  streams  and  ditches  15 

To  assist  viewers  in  diking  district  133 

To   report  on  plan  for  irrigation  district  97 

To  receive  applications  for  permit  to  appropriate  water 6 

STATE  WATER  BOARD   (Formerly  Board  of  Control) 

Appeals    from    29, 37 

Appeal  to,  from  State  Engineer  9 

Appeal   to,  from   Division    Superintendent  32 

Findings  of,  conclusive  when  19 

How    constituted 29 

Members  authorized  to  administer  oaths  30 

Meetings  of  29 

Name  changed  from  Board  of  Control  to  State  Water  Board..  29 

Secretary  of  30 

Salary,  duties,  bond,  etc 30 

To   appoint  water  masters   20 

To   determine   water   rights   11, 20 

To  divide  division  into  districts  20 

To  determine  amount  of  annual  fees  for  power 36 

To  issue  water  right  certificates,  under  permits  10 

Under    adjudications    16 

To  limit  the  amount  of  water  to  be  used  33 

To  limit  time  of  construction  of  works,  under  permits 9 

Where  commenced  before  1909  33 

To  issue  instructions  to  Superintendents,  when  18 

To  pay  fees  collected,  to  State  Treasurer  36 

STATEMENT  OF  CLAIMANT 

To  be  under  oath  12 

What  to  contain   12 

STAY   BOND 

Operation  of  findings  of  Board  to  be  stayed  by 18 

SECRETARY  OF  STATE  WATER  BOARD 

Appointment,  duties  and  salary  of  30 

Fees  collected  by  30 

SUITS 

Decrees 52 

Parties  and  costs  of 52 

Who  may  become  parties  to  56 

SURVEYS  AND  INVESTIGATIONS 
Appropriations  for 

$6,900  fund,  for  adjudication  surveys  81 

Co-operative  funds. 

1905—$  5,000    fund    71 

1911— $20,000    fund    81 

1913— $50,000    fund    

Power   fees   to   form  fund   .  82 


192  WATER  LAWS  OP  THE  STATE  OF  OREGON 

PAGE 

T. 
TESTIMONY 

Dates  for  taking  fixed  11 

By   whom   taken 12 

To  adjourn  taking  of  11 

TRAILS   AND   WATER   COURSES 

Control  of,  under  county  court 73 

Law  not  applicable  to  county  roads 73 

Location  of,  by  viewers   72 

Procedure  to  establish  72 

Report  by  viewers  73 

Road  work  applied  in  building  trail  73 

TRANSFER  OF  WATER  RIGHT 

Procedure 27 

TUMALO  IRRIGATION  PROJECT. 

See  Columbia  Southern  Project. 

U. 
UNITED    STATES 

See    Federal    Statutes. 

Appropriation  of  water  by  70 

Lands  appropriated  for  irrigation  projects  71 

Right  of  way  over  state  lands  72 

UNNAVIGABLE    STREAMS 

Bond  of  lessee  67 

Court  may  contract  with  lessee  67 

May  be  declared  highways  65 

Procedure    65 

Tolls  fixed  by  court 67 

V. 
VESTED   RIGHTS 

Preserved  by  1909  Water   Code  33 

W. 
WASTEFUL  USE   OF  WATER 

Unlawful   27 

Water  Master  shall  prevent  21 

WATER 

Appurtenant  to  land  for  irrigation  27 

Belongs  to   public   36 

WATER  DIVISIONS 

Counties   embraced   in   31 

Districts    20 

WATER   MASTER 

Appointment  of  20 

District  Attorney  to  act  for  21 

Duty    of 20 

In  regard  to  reservoirs  24 

Employment  of  assistants  22 

Pay  of  21 


WATER  LAWS  OF  THE  STATE  OF  OREGON  193 


PAGE 

Power  of  arrest   23 

Shall  prevent  waste  21 

Term    of 20 

To  begin  work  when  22 

To  regulate  ditches  and  reservoirs  26 

WATER  RIGHT  CERTIFICATE 

Based  upon  adjudicated  rights  16 

Based  upon  permits  issued  by  State  Engineer  10 

Nature  of  : 16 

WIRE   SCREENS 

Required  at  inlets  of  canals  and  ditches  65 

WITHDRAWALS   BY   UNITED    STATES 

Act  not  to  rescind  cession  to  U.  S 72 

Beginning   of   construction   '. 70 

Maps  to  be  filed  when  .-. 70 

Notice  to  be  filed  with  State  Engineer  70 

Publication  of  withdrawal  notice  70 

Publication  of  release  notice  71 

State  lands,  disposition  of  71 

Right  of  way  over  72 

Under   Carey  Act 163 

Application   for 163 

Deposit    to    accompany    163 


INDEX 

TO  L.  O.  L.  SECTIONS  AND  SESSION  LAWS 
OF  1911  AND  1913. 


L.  O.  L.    Page 

1975 64 

1989 64 

2237 73 

2238 73 

2239 74 

2240 74 

2241 74 

2243 74 

2337 75 

2338 77 

2356 65 

3302   40 

3860 161 

3861 161 

3862 162 

3863 162 

3864 163 

3865 163 

3866 164 

3867 164 

3868 164 

3869  165 

3807 165 

3871 166 

3872 166 

3873 166 

3874... 167 

3875 167 

3876 167 

3877 168 

3940 47 

3941 47 

3942 48 

5136 57 

5245 77 

5269 78 

5270 78 

5288 78 

5791 62 

5792 62 

5793 63 

5794  63 

5795 63 

5796 63 

5797 64 

5798 64 

5799 64 

5800...   ...129 


L.  0.  L. 

Page 

L.  O.  L. 

Page 

5801  

....130 

6164  

....140 

5802  

130 

6165  

....140 

5803  

....130 

6166  

....141 

5804  

130 

6167  

....  87 

5805  

131 

6168  

....  87 

5806  

....131 

6169  

....  89 

5807  

....131 

6170  

91 

5808  

....131 

6171  

....  91 

5809  

....132 

6172  

....  91 

5810  

....132 

6173  

92 

5811  

...132 

6174  

....  92 

5812  

132 

6175  

....  93 

6126  

122 

6176  

....  93 

6127  

.  ..123 

6177  

94 

6128  

123 

6178.... 

....  94 

6129  

124 

6179   .. 

95 

6130  

....124 

6180  

.  96 

6132  

...125 

6181  

..  97 

6133  

...125 

6182  

....  97 

6134  

126 

6183  

....100 

6135  

...126 

6184  

....100 

6136  

....126 

6185  

....101 

6137  

....127 

6186  

....101 

6138  

....127 

6190  

.  .102 

6139  

127 

6191   .. 

.  ..103 

6140  

....127 

6192  

....103 

6141  

....128 

6193  

104 

6142  

129 

6202  

105 

6143  

129 

6203  

105 

6144  

....129 

6205  

...  .105 

6145  

129 

6206   .. 

i  o  r> 

6147  

...133 

6207  

106 

6148  

.   133 

6208  

107 

6149  ..  . 

.133 

6209  

107 

6150  

134 

6210  

108 

6151  

134 

6211   .. 

.   108 

6152  

.....135 

6212  

109 

6153  

135 

6213  

109 

6154  

135 

6214  

...122 

6155  

136 

6217  

122 

6156  

138 

6232  ... 

141 

6157  

138 

6233  

141 

6158  

138 

6234  

...142 

6159  

.  .  .139 

6235.  ..... 

142 

6160  

139 

6236  

142 

6161  

139 

6237  

143 

6162  

139 

6238  

143 

6163... 

...139 

6239... 

...144 

L.  O.  L.    Page 

6240 144 

6241 144 

6242 145 

6243 145 

6244 145 

6382 61 

6427  ..    60 

6428  .  ..    60 

6429 61 

6430 61 

6431 61 

6447 72 

6448 72 

6449  .  ..    73 

6450 73 

6451 73 

6452 73 

6453 65 

6454 66 

6455 67 

6456 67 

6457 67* 

6525 48 

6527 41 

6536 55 

6539 55 

6540 55 

6542 55 

6544 50 

6545 56 

6546 56 

6548 56 

6549 48 

6550 57 

6551 38 

6565 53 

6571 50 

6574 54 

6575 36 

6576 36 

6577 36 

6578 36 

6579 37 

6581 68 

6582 68 

6583 69 

6584 69 

6585...    .  69 


WATER  LAWS  OP  THE  STATE  OF  OREGON 


195 


L.  O.  L. 

6586 
6587 
6588  

Page 
69 

70 
.  70 

L.  O.  L. 
6646 
6647 
6648  

Page 
.  15 
15 
...  15 

Laws  1911  Page 
Chap.  71 
§   1  81 

Laws  1911  Page 

§   3...   ,.  38 
§   4  38 

6589  

71 

6649  

...  16 

§ 

z 

82 

Chap. 

237 

6590. 
6591  

.  71 
.  71 

6650 
6651  

16 
...  18 

Chap, 

,  80 

§   1 
§  2  

82 
83 

6592  

.  72 

6652  

.  18 

s 

1... 

48 

6593  

.  72 

6653  

...  18 

§ 

2  

49 

Chap. 

238 

6594  

.   5 

6654  

18 

§   1 

.  40 

6595  

.  32 

6655.  .. 

...  19 

Chap. 

172 

§   2  

....  40 

6596  
6597  

.  40 

.  27 

6656 
6657  

19 
...  19 

§ 
§ 

1 
2  

145 

....145 

Chap.x 

239 

6598  

.  51 

6658  

...  52 

§ 

3  

145 

§   1  

....  81 

6599  

.  52 

6659  

...  52 

§ 

4  

145 

§   2  

....  81 

6600  

.  52 

6660  

23 

5  

....146 

§  3  

...  .  81 

6601 
6602  

28 
.  80 

6661  
6662  

...  24 
24 

| 

6 

7 

146 
.....147 

Laws  19  13  Page 

6603  

.  29 

6663 

...  24 

8 

....148 

Chap. 

82 

6604  

.  30 

6664  

...  25 

8 

...  . 
10 

148 
148 

29 

6605 
6606  

30 
.  30 

6665 
6666  

25 
...  26 

1 

8 

12 

.149 
149 

Chap. 

86 

6607  

.  30 

6667  

26 

§   1- 

.:  41 

6608 
6609  

.  31 
.  31 

6668 
6669 

27 
97 

Chap. 

223 

§   2 
§   3  

50 
....  14 

6610.. 
6611 
6612  

.  31 
32 
.  32 

6670 
6671 

27 
...  34 

| 

14 
15... 
16  

109 
110 
....110 

§   4  

§   5 
§   6  

26 
26 
....  81 

6613  

.  32 

6672  

...  34 

17 

....110 

6614  

.  32 

6673.  

...  53 

§ 

18  

—111 

Chap. 

87 

6615  

.  20 

6674  

...  54 

I 

19.  .. 

-..111 

§   1 

83 

6616  

.  20 

6675  

...  54 

20  

—111 

§   2  

....  83 

6617  

.  20 

6676  

...  54 

§, 

21... 

....111 

§  3  

....  84 

6618  

.  21 

6677  

...  54 

8, 

22.... 

....112 

§  4  

....  84 

6619  

.  21 

6678  

.   55 

§ 

23... 

....112 

§   5  

....  84 

6620  

.  22 

6838 

41 

24 

—  113 

§   6  

....  84 

6621  

.  22 

6839 

49 

§ 

25  

....113 

6622.. 
6623  
6624  
6626  
6627  
6628  
6629 
6630 
6631  

.  22 
.  23 
6 

7 
7 
8 
9 
9 
.   9 

6840 
6857 
6858 
6871 
6872 
6873 
6874 
7444  

43 
43 

44 
44 
44 
45 
46 
...  57 

§ 
§ 

§ 

26 
27 
28 
29 
30 
31 
32 
33 
34  

117 
117 
118 
118 
118 
119 
119 
119 
....120 

Chap. 

§   1 
§   2 
§   3 
§   4  
§   5 
S   6 

119 

168 
168 
168 
169 
170 
170 
170 

170 

6632  

.  10 

7445  

...  59 

§ 

35  

—  121 

§   8  

6633  
6634  

10 
.  10 

"Laws  1911 

Page 

I 

36 
37  

121 
....121 

Chap. 

279 

6635  

.  11 

Chap. 

8 

§ 

38  

....121 

50 

6636  
6637  

.  11 
.  11 

§  1  

...  79 

§ 

39 

122 

Chap. 

283 

6638.  

.  12 

§   2  

79 
on 

Chap. 

224 

40 

6639  

.  12 

8   "  

6640 
6641 
6642  

12 
.  13 
.  13 

Chap. 
§   1  

45 
.  80 

Chap. 

49 

236 

Chap. 
8   1 
8   2 

374 

85 
85 

6643  

.  14 

§   2  

...  80 

§ 

1  

.  37 

I  3:::::: 

....  85 

6644 

.  14 

§   3  

...  80 

i 

2  

.  37 

I   4... 

..  86 

r 


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